Administrative Review Board

A G E N D A Administrative Review Board City Council Chambers 800 Municipal Drive, Farmington, NM October 8, 2020 at 6:00 p.m. This meeting will be held via Zoom: https://us02web.zoom.us/j/89359304923 Item No. 1 Call Meeting to Order 2 Approval of the Agenda 3 Approval of the Minutes from February 6, 2020 Meeting 4 Adoption of a resolution setting and establishing a regular meeting day, time and place for the Administrative Review Board 5 Discussion regarding proposed changes to the Unified Development Code 6 PUBLIC HEARING: Petition ARB 20-39 – a request from Anthony McGarger, owner of property at 207-209 E. Ute St., for a variance to Sections 9.2.4 & 9.3.3 of the Unified Development Code (UDC) prohibiting rebuilding of a non-conforming building on a property for a non-conforming use. 7 PUBLIC HEARING: Petition ARB 20-42 – a request from Lewis McMullen, son of Dan McMullen, owner of property at 3800 San Medina, for a variance to Section 2.5.2.B & C of the Unified Development Code to allow for placement of an accessory structure in the front setback. 8 PUBLIC HEARING: Petition ARB 20-43 – a request from Steve and Tina Trujillo, owners of property at 1013 W. Apache St., for a variance to Sections 9.2.4 & 9.3.3 of the Unified Development Code (UDC) prohibiting rebuilding of a non-conforming building on a property for a non-conforming use. use. 9 Business from: Floor: Chairman: Members: Staff: 10 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.  Administrative Review Board Meeting Minutes July 9, 2020 – 6:00 P.M. The Administrative Review Board met in regular session via Zoom Virtual Platform on Thursday, June 4, 2020 at 6:00 p.m. in the City Council Chamber, 800 Municipal Drive, Farmington, New Mexico. Members present Brian Erickson Vice Chair Cindy Lopez Paul Martin Members absent: Chair James Dennis Jeff Johanson Staff present: Beth Escobar Andrea Jones Elizabeth Sandoval Anita Vigil Others addressing the Board (Via Zoom Virtual Platform): Joseph Sanchez Call to Order The meeting was called to order at 6:04 p.m. by Vice Chair Lopez 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 Erickson and seconded by Board Member Martin to approve the agenda. The motion passed unanimously by a vote of 3-0. Approval of the Minutes from the March 5, 2020 and June 4, 2020 Regular Meetings Board Member Martin made a motion to approve the minutes of the March 5, 2020 and June 4, 2020 regular meetings. The motion was seconded by Board Member Erickson and passed unanimously by a vote of 3-0. Swearing in of Witnesses All parties that wished to speak on behalf of any agenda item were sworn in by Elizabeth Sandoval, Administrative Assistant. Discussion of Petition No. ARB 20-22 on July 9, 2020 Beth Escobar, Planning Manager, presented the staff report for Petition No. ARB 20-22 a request from Joseph Sanchez, owner of property at 2901 Marquette Ave, for a variance to Section 2.8.C.(3).c of the Unified Development Code requiring a 10-foot separation from the primary residence and side property yard for an accessory structure. The request is for a replacement of an existing shed that has been in place for over forty years. The shed is 2.5 feet from roofline of petitioner’s residence and 7 feet from the roofline of the neighbor’s house. The Building Code, which is not subject to a variance procedure, requires a fire wall be installed on the wall parallel to the property line if it is less than 3 feet from the property line. No public input in opposition to this request has been received. A special condition relative to this petition is that the existing shed has been in place for over forty years. A literal interpretation of the code would deprive the petitioner of a right he has enjoyed since 1979. The granting of this variance will not change any current uses on the property and is a minimum easing of the code. The Community Development Department concludes that approval of ARB 20-22 is a minimum easing of the code meets the intent of the code and is a property that has characteristics unique enough to allow for replacement of an existing shed. The Community Development Department recommends approval of Petition ARB 20- 22 from Joseph Sanchez for a variance from Section 2.8.C.(3).c of the Unified Development Code allowing for installation of a replacement shed less than 10 feet from the primary residence and side property yard with the following stipulation. The interior wall parallel to the side property line of the new accessory structure shall be required to have 2 layers of 5/8-inch type ‘X’ drywall installed on the inside of the new shed if the new shed is closer than 3 feet to the side property line. A building permit shall be required for this construction. Ms. Escobar asked if there were any questions. Vice Chair Lopez asked if the petitioner or representative were present. Mr. Joseph Sanchez answered he was present via Zoom. Mr. Sanchez stated his name and address as: Joseph Sanchez, 2901 Marquette Ave., Farmington New Mexico. Vice Chair Lopez asked Mr. Sanchez if he had read the staff report and the recommendation. Mr. Sanchez said, yes he did. Vice Chair Lopez asked Mr. Sanchez if he had any questions or wanted to add anything further. Mr. Sanchez said he did not. Vice Chair Lopez asked if there were any questions for the petitioner by the board. There were none. Vice Chair Lopez asked Ms. Escobar what the distance from the wall of the shed to the property line. Mr. Sanchez stated that it was 2 ½ ft. Vice Chair Lopez asked if there were any questions or concerns from anyone within 100 feet of the property that received a letter regarding the petition. There was no one present with questions or concerns. Administrative Review Board Action for Petition No. ARB 20-17 on June 4, 2020 A motion was made by Board Member Erickson and seconded by Board Member Martin to approve Petition No. ARB 20-22, a request from Joseph Sanchez, owner of property at 2901 Marquette Ave, for a variance to Section 2.8.C.(3).c of the Unified Development Code requiring a 10-foot separation from the primary residence and side property yard for an accessory structure. AYE: Vice Chair Lopez, Board Member Erickson and Board Member Martin. NAY: None ABSTAIN: None ABSENT: Chair Dennis and Board Member Johanson 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: Ms. Escobar stated that the first phase of the Main Street Project was complete. The Mayor would be holding a soft opening from Orchard Ave. east, Friday morning at 8:00 am. All were invited to attend and to wear a mask. Adjournment: The July 9, 2020 meeting of the Administrative Review Board was adjourned at 6:21 p.m. A motion to adjourn was made my Board Member Martin and seconded by Board Member Erickson and passed unanimously by a vote of 3-0. _________________________________ _________________________________ Cindy Lopez – Vice Chair Elizabeth Sandoval - Administrative Assistant  RESOLUTION A RESOLUTION SETTING AND ESTABLISHING A REGULAR MEETING DAY, TIME AND PLACE FOR THE ADMINISTRATIVE REVIEW BOARD PURSUANT TO CITY COUNCIL RESOLUTION NO. 2013-1466 AS RATIFIED WHEREAS, pursuant to the provisions of Resolution No. 2013-1466 as ratified, each board, commission, committee or other policy making body of the City of Farmington which holds regular meetings shall annually, subject to the ratification and approval of the City Council of the City of Farmington, establish a regular meeting day, time and place; and WHEREAS, the Administrative Review Board of the City of Farmington has determined and does recommend to the City Council that the regular meeting day, time and place of the Administrative Review Board of the City of Farmington and the location where a copy of the agenda of such meetings may be obtained shall be as set forth in this resolution. NOW, THEREFORE, BE IT RESOLVED BY THE ADMINISTRATIVE REVIEW BOARD OF THE CITY OF FARMINGTON: That the regular meeting day, time and place of the Administrative Review Board of the City of Farmington shall be held on the first Thursday following the first Tuesday of each month at 6:00 p.m. in the Council Chambers, Municipal Building, 800 Municipal Drive, Farmington, New Mexico and that the location where a copy of the agenda of the regular meeting may be inspected seventy-two (72) hours in advance of the meeting shall be at the Community Works Department, Municipal Annex, 805 Municipal Drive, Farmington, New Mexico. PASSED, SIGNED, APPROVED and ADOPTED this _______ day of November, 2020. By: Chairperson, Administrative Review Board  ADMINISTRATIVE REVIEW BOARD Petition ARB 20-39 Variance to Sections 9.2.4 & 9.3.3: Non-conformities, Destruction or Demolition, of the Unified Development Code prohibiting rebuilding of a non-conforming building on a property for a non-conforming use. DESCRIPTION OF PETITION Petition No. ARB 20-39 is a request from Anthony McGarger, owner of property at 207- 209 E. Ute St., for a variance to Sections 9.2.4 & 9.3.3 of the Unified Development Code (UDC) prohibiting rebuilding of a non-conforming building on a property for a non- conforming use. These sections of the Code prohibit the rebuilding of a non-conforming structure or the reinstatement of a non-conforming use if destroyed by fire, elements or other cause, by more than fifty percent. LEGAL DESCRIPTION Block six (6), of Orchard Heights Subdivision in the City of Farmington, San Juan County, New Mexico Otherwise located at 209 E. Ute St. GENERAL INFORMATION Applicant Anthony McCarger Property Owner Anthony and Lind McCarger Location of Property 207-209 E. Ute St. Nature of Petition The petitioner is requesting a variance to allow for the potential of rebuilding a non-conforming building and reestablishing a non-conforming use if either of the two residential structures on the property are destroyed by more than 50 percent. Applicable Regulations City of Farmington Unified Development Code (UDC): Section 9.2.4 states: Destruction or demolition. If a nonconforming use or structure containing a nonconforming use (see section 9.3.3) is destroyed by fire, the elements or other cause, it may not be rebuilt except in conformity with the provisions of this UDC. In the case of partial destruction of such a use not exceeding 50 percent of its replacement value, reconstruction may be permitted by special use permit, provided, however: A. The size and function of the nonconforming use shall not be expanded; and B. Work on the restoration of the use must begin within six months and be completed within 12 months of the time of the calamity. Section 9.3.3 states: Destruction or demolition. If a nonconforming structure is destroyed by fire, the elements, or other cause, it may not be  ARB 20-39 Petition Report Page 2 rebuilt except to conform to the provisions of this UDC. In the case of partial destruction of a structure occupied by a nonconforming use not exceeding 50 percent of its replacement value, reconstruction may be permitted by the special use permit, provided, however: A. The size and function of the nonconforming use shall not be expanded; and B. Work on the restoration of the use must begin within six months and be completed within 12 months of the time of the calamity. Zoning SF – 7 Single-family residential Existing Use Residential Surrounding Zoning North: SF-7 Mossman Subdivision Land Use South: SF-7 Orchard Heights Subdivision East: SF-7 Highland Subdivision West: SF-7 Orchard Heights Subdivision Public Notice Publication of Notice of this petition appeared in the Daily Times on Sunday, September 20 2020. Property owners within 100 feet were sent notice by certified mail on Wednesday, September 16 2020. A sign was posted on the property on Friday, September 25, 2020. Staff Beth Escobar, Planning Manager BACKGROUND Per Section 9.1.2 of the UDC: The use of land, use of a structure, or a structure itself; including but not limited to substandard parcels, or structures not complying with applicable dimensional standards, shall be deemed to have nonconforming status when each of the following conditions are satisfied: A. The use or structure does not conform to the regulations prescribed in the district in which such use or structure is located and was in existence and lawfully constructed, located and operating prior to, and at the time of the event that made such use or structure nonconforming. B. The event that made such use, structure, lot or parcel nonconforming was one of the following: annexation by the City of Farmington, adoption of this UDC or a previous Zoning Ordinance, acquisition of land by the city for public purposes, amendment of this UDC, or by court order. C. The nonconforming use or the use occupying the nonconforming structure has been operating since the time that the use or structure first became nonconforming without abandonment, as abandonment is defined in section 9.2.5, cessation of a nonconforming use. According to the San Juan County Assessor’s database, the smaller residential structure at 207 E Ute was constructed in 1934. The main residence at 209 E Ute was constructed in 1995.  ARB 20-39 Petition Report Page 3 The current property owners purchased the property in 2007 as a multi-family residential unit. The property has been used as multi-family residential continuously since this purchase. This makes the structure and use legal, non-conforming. The property owners reside at 209 E Ute and use the detached structure, 207 E Ute as a rental. Future Land Use Plan Designation This property is designated single family residential on the 2002 Future Land Use Plan. Legal, Non-conforming Use Law The concept of legal, non-conforming property, or grandfathering, has been in existence since the first zoning laws adopted in the early 1900’s. In general, the prohibition against rebuilding a non-conforming structure or reestablishing a non-conforming use if destroyed by more than 50 percent is included in zoning regulations in order to attempt to bring the property into conformance with existing zoning regulations and the current comprehensive plan. A brief survey of zoning regulations of other municipalities in New Mexico shows there is no consistency in codes related to legal, non-conforming issues. Some cities prohibit rebuilding or reestablishment no matter the percentage of destruction, and some cities do not prohibit rebuilding at all. INPUT FROM NEIGHBORS: Staff has received one email and one phone call from neighbors requesting more information on the petition. No formal comments have been submitted at the time of this report. Vicinity Map  ARB 20-39 Petition Report Page 5 Aerial Map of Property Rental Unit  ARB 20-39 Petition Report Page 6 Future Land Use Plan Designation ANALYSIS Variance Criteria – Section 8.12.4, UDC A variance may be granted only where a literal enforcement of the Code provisions would result in unnecessary hardship for a particular property. In order to grant a variance, the Administrative Review Board (ARB) must make a positive finding of fact concerning each of the following or, if a positive finding of fact cannot be made that the ARB specifically describes the circumstance that would outweigh the strict requirement for a positive finding of fact and determine that the variance will not be a public detriment: 1. That special conditions and circumstances exist, which are peculiar to the land, structure or building involved and are not applicable to other lands, structures or buildings in the same district; and, furthermore, that they are not self-imposed, self-created or otherwise the result of actions by the applicant. Per the petitioner’s application, when they purchased the property, there was an existing use as a duplex. The property was purchased in 2006, before the current UDC and Zoning Map were adopted in 2007. This criterion IS met. 2. That a literal interpretation of the provisions of the Code would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of the Code. Other properties in the neighborhood are in conformance with the SF-7 Single Family Residential zoning and could obtain re-financing or financing. This criterion IS met. 3. The applicant demonstrates that the request is a minimum easing of the Code requirements, making possible the reasonable use of the land, building or structure. This request is a minimum easing of the code and would allow the property owner to have the full use of his land. The existing use as a multi-family property has been in place for an extended period of time without creating any issues. Rebuilding either the main residence or the rental unit would not impact the neighborhood. This criterion IS met. 4. That the granting of the variance is in harmony with the general interest, the general purpose and intent of the Code, and is not injurious to the neighborhood or otherwise detrimental to the public welfare.  ARB 20-39 Petition Report Page 8 The granting of this variance will not change any of the current uses on the property. The requested variance is in harmony with the general interest and the general purpose and intent of the Code. Granting of the variance will allow for the full replacement of a multi-family residential use. Multi-family housing has been identified as important to the housing diversity of Farmington, per the 2002 Comprehensive Plan. This criterion IS met. 5. That the proposed variance will not permit a use not otherwise allowed in the underlying district. Although multi-family residential is not a permitted use in a single-family residential zone, the designation as legal, non-conforming entitles this property to the use and structure that currently exist. The variance being requested is to vest the multi-family use even if the structures are destroyed by more than 50 percent. This criterion IS met. 6. That no nonconforming use of neighboring lands, structures or buildings in the same district and no permitted use of lands, structures or buildings in other districts has been or shall be considered grounds for the issuance of a variance. No nonconforming uses, structures or buildings in the same district have been considered as grounds for this variance request. This criterion IS met. 7. That the applicant would suffer an unnecessary hardship if the variance requested were denied. Denial of the variance would prohibit the property owner from refinancing the property. It would also prevent sale of the property as a multi-family residential property. This criterion IS met. CONCLUSION The Community Development Department concludes that approval of ARB 20-39 is a minimum easing of the code, meets the intent of the code and is a property that has characteristics unique enough to allow for the reconstruction and reestablishment of a  ARB 20-39 Petition Report Page 9 multi-family structure and use should the existing buildings be destroyed by more than 50 percent. RECOMMENDATION The Community Development Department recommends approval of Petition ARB 20- 39 from Anthony McCarger for a variance from Sections 9.2.4 and 9.3.3: Non- conformities, Destruction or Demolition, of the Unified Development Code to allow for reconstruction and reestablishment of a non-conforming structure and use with the following stipulation: 1. Any new construction shall comply with current building and fire codes.  ARB 20-39 Petition Report Page 10 PLANNING MEMO COMMENTS SUMMARY ARB 20-39 207 E. UTE ST. ARB 20-39 Petition Report Page 11 ARB 20-39 Petition Report Page 12 ARB 20-39 Petition Report Page 13 ARB 20-39 Petition Report Page 14  ARB 20-39 Petition Report Page 15 NOTICE OF PUBLIC HEARING VARIANCE REQUEST PETITION NO. ARB 20-39 ARB 20-39 Petition Report Page 16 ARB 20-39 Petition Report Page 17 ARB 20-39 Petition Report Page 18 ARB 20-39 Petition Report Page 19 ARB 20-39 Petition Report Page 20  ADMINISTRATIVE REVIEW BOARD Petition ARB 20-42 Variance to Section 2.5.2.B & C of the Unified Development Code to allow for installation of a 160-square foot accessory structure in the front yard setback of a residential property. DESCRIPTION OF PETITION Petition No. ARB 20-42 is a request from Lewis McMullen, son of Dan McMullen, owner of property at 3800 San Medina, for a variance to Section 2.5.2.B & C of the Unified Development Code to allow for placement of an accessory structure in the front setback. LEGAL DESCRIPTION Lot five (5), Block fifteen (15), of Northridge Subdivision Number Two in the City of Farmington, San Juan County, New Mexico Otherwise located at 3800 San Medina Ave GENERAL INFORMATION Applicant Lewis McMullen Property Owner Dan McMullen Location of Property 3800 San Medina Ave Nature of Petition The petitioner is requesting a variance to allow for placement of a 160-square foot accessory structure in the front yard setback. Applicable Regulations City of Farmington Unified Development Code (UDC): Section 2.5.2 General standards. All accessory structures and uses shall comply with the following standards: A. No accessory structure or use shall be constructed or established on any lot prior to the issuance of a building permit for the principal structure or an occupancy permit for a principal use to which it is accessory. This provision shall not prohibit the issuance of a permit for a detached garage at the time of issuance of a building permit for a principal dwelling unit on the subject parcel. B. Accessory uses and structures must be subordinate to the principal use and structure on the subject lot in terms of area, extent, and purpose. The total gross floor area of all accessory structures that are built in the required rear and side yard on a lot shall not exceed 1,000 square feet or 50 percent of the total gross floor area of the principal structure on the lot, whichever is greater. Any accessory structure that is constructed within the allowed building footprint shall not exceed 2,000 square feet or 50 percent of the total gross floor area of the principal structure, whichever is greater; or  ARB 20-42 Petition Report Page 2 exceed 20 feet in height. The provisions of this paragraph shall not apply to agricultural uses. C. Unless otherwise expressly stated herein, accessory structures and uses shall comply with all applicable regulations of this UDC, including the maximum height and setback regulations. No accessory use or structure shall cause any of these standards to be exceeded for the underlying zoning district. Zoning SF – 7 Single-family residential Existing Use Residential Surrounding Zoning North: SF-7 Northridge 2 Subdivision Land Use South: SF-7 Northridge 2 Subdivision East: MF-m Northridge Commercial Subdivision- undeveloped West: SF-7 Northridge 2 Subdivision Public Notice Publication of Notice of this petition appeared in the Daily Times on Sunday, September 20 2020. Property owners within 100 feet were sent notice by certified mail on Wednesday, September 16 2020. A sign was posted on the property on Friday, September 25, 2020. Staff Beth Escobar, Planning Manager BACKGROUND The petitioner wishes to place a 160-square foot accessory structure in the front-yard setback area of the subject property, directly in front of the existing residence. Mature trees would screen the structure. Per the application, the front yard is the ideal location for placement of the shed. Placement of the shed on the south side of the property adjacent to E 38th St would meet code requirements. The applicant feels placement at this location would create an eyesore for the neighbors. Placement on the north side of the property in the side yard would also meet regulations, however the applicant states this would limit his ability to park vehicles in this area. Placement in the backyard is challenging because of existing topography. The petitioner is requesting a variance from the Unified Development Code that requires accessory structures to be within the building footprint or in the rear and side yard. Mr. McMullen submitted a building permit to the Community Works Department showing the placement of the accessory structure in the front yard. This permit was approved in error by the Planning Division. The error was caught by the Building Division, however, the property owner had already purchased the shed.  ARB 20-42 Petition Report Page 3 INPUT FROM NEIGHBORS: At the time of this report, there have been no comments received regarding this application.  Vicinity Map Aerial Map of  ARB 20-42 Petition Report Page 5 Property Proposed Shed Placement  ARB 20-42 Petition Report Page 6 North Side Yard  ARB 20-42 Petition Report Page 7 Placement Option #1 – North Side Yard  ARB 20-42 Petition Report Page 8 South Side Yard  ARB 20-42 Petition Report Page 9 Placement Option #2 – South Side Yard ANALYSIS Variance Criteria – Section 8.12.4, UDC A variance may be granted only where a literal enforcement of the Code provisions would result in unnecessary hardship for a particular property. In order to grant a variance, the Administrative Review Board (ARB) must make a positive finding of fact concerning each of the following or, if a positive finding of fact cannot be made that the ARB specifically describes the circumstance that would outweigh the strict requirement for a positive finding of fact and determine that the variance will not be a public detriment: 1. That special conditions and circumstances exist, which are peculiar to the land, structure or building involved and are not applicable to other lands, structures or buildings in the same district; and, furthermore, that they are not self-imposed, self-created or otherwise the result of actions by the applicant. Options for placement of an accessory structure on this corner property are limited due to orientation of the residence, a sloped backyard, and a narrow side access on the north side. This criterion IS met. 2. That a literal interpretation of the provisions of the Code would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of the Code. Accessory structures are permitted in all residential zoning districts. Because of existing site conditions, there is not an ideal location for placement that conforms with code regulations. This criterion IS met. 3. The applicant demonstrates that the request is a minimum easing of the Code requirements, making possible the reasonable use of the land, building or structure. It is the opinion of staff that a request to place an accessory structure in the front yard is not a minimum easing of code. Placement of an accessory structure in the front yard setback has a direct impact on adjacent neighbors and travelers along the road. This criterion IS NOT met. 4. That the granting of the variance is in harmony with the general interest, the general purpose and intent of the Code, and is not injurious to the neighborhood or otherwise detrimental to the public welfare.  ARB 20-42 Petition Report Page 11 In staff’s opinion, the granting of the variance is not in harmony with the general interest or the purpose and intent of the Code. The regulations which restrict the placement of accessory structures are designed, in part, to maintain a neat, attractive curbside appearance for single-family residential neighborhoods. Placement of an accessory structure in the front yard would not be consistent with this goal. This criterion IS NOT met. 5. That the proposed variance will not permit a use not otherwise allowed in the underlying district. Accessory structures are a permitted use in all residential zoning districts. This criterion IS met. 6. That no nonconforming use of neighboring lands, structures or buildings in the same district and no permitted use of lands, structures or buildings in other districts has been or shall be considered grounds for the issuance of a variance. No nonconforming uses, structures or buildings in the same district have been considered as grounds for this variance request. This criterion IS met. 7. That the applicant would suffer an unnecessary hardship if the variance requested were denied. Even though the petitioner invested in the purchase of the accessory structure based on an initial error by Planning Division staff, there appear to be other locations on the property for placement of the accessory structure. This criterion IS NOT met. CONCLUSION The Community Works Department concludes that approval of ARB 20-42 is not a minimum easing of the code, does not meet the intent of the code. There are unique characteristics to this property, however, there appear to be other locations for placement of the shed. As noted above, per Section 8.12.4 of the UDC, if a positive finding of fact cannot be made based on the criteria cited above, the Board may specifically describe circumstances that would outweigh the strict requirement for a positive finding of fact and determine that the variance will not be a public detriment. Staff would note that  ARB 20-42 Petition Report Page 12 placement in the front yard may have less of a neighborhood impact than placement of the accessory structure on the south side yard. RECOMMENDATION The Community Development Department recommends denial of Petition ARB 20-42 from Lewis McMullen, 3800 San Medina Ave. for a variance from Sections 2.5.2.B & C of the Unified Development Code.  ARB 20-42 Petition Report Page 13 PLANNING MEMO COMMENTS SUMMARY SP 20-42 3800 SAN MEDINA AVE. City of Farmington Departments CW Planning Manager – B. Escobar CW Addressing – Planning Division Chief Building Official – D. CW No Comment Childers CW Long Range Planner CW MPO CW Oil & Gas Inspector CITY City Manager’s Office – J. Baird No Comment Customer Care Manager – L. ELEC Richardson Electrical Engineering – L Aligarbes ELEC / Roberto Ga ELEC T & D – Field Op – L. Lugenbeel FIRE Fire Captain – K. Rix No Comment FIRE Fire Marshall – B. Vega LEGAL City Attorney – J. Breakell LEGAL Deputy City Attorney – E. Wayne No Comment POLICE Code Compliance – M. Romero No Comment POLICE Sergeant – S. Goodsell PRCA S. Reeves / R. Crosby No Comment PRCA ORII – W. Unsicker CW Is the proposed structure on the street side City Engineer – N. Westerling (towards the corner) on the non-street side (north of the house)? Engineering – T. Sitta CW CW Streets Superintendent – C. Fuller CW Traffic Engineer – I. BlueEyes CW Water/Waste Water – M. Tso No Comment  ARB 20-42 Petition Report Page 14 Other Entities New Mexico Gas Company – R. Castillo No Comment CenturyLink – D. Willato Enterprise Field Services – M. Waszut No Comment Comcast Cable – M. Johnson JACOBS CH2MHILL OMI Surface Land Negotiator for BP – M. Venzara Farmington School District – C. Lyons ARB 20-42 Petition Report Page 15 ARB 20-42 Petition Report Page 16 ARB 20-42 Petition Report Page 17 ARB 20-42 Petition Report Page 18  ARB 20-42 Petition Report Page 19 NOTICE OF PUBLIC HEARING VARIANCE REQUEST PETITION NO. ARB 20-22 ARB 20-42 Petition Report Page 20 ARB 20-42 Petition Report Page 21 ARB 20-42 Petition Report Page 22 ARB 20-42 Petition Report Page 23 ARB 20-42 Petition Report Page 24 ARB 20-42 Petition Report Page 25 ARB 20-42 Petition Report Page 26 ARB 20-42 Petition Report Page 27 ARB 20-42 Petition Report Page 28  ADMINISTRATIVE REVIEW BOARD Petition ARB 20-43 Variance to Sections 9.2.4 & 9.3.3: Non-conformities, Destruction or Demolition, of the Unified Development Code prohibiting rebuilding of a non-conforming building on a property for a non-conforming use. DESCRIPTION OF PETITION Petition No. ARB 20-43 is a request from Steve and Tina Trujillo, owners of property at 1013 W. Apache St., for a variance to Sections 9.2.4 & 9.3.3 of the Unified Development Code (UDC) prohibiting rebuilding of a non-conforming building on a property for a non-conforming use. These sections of the Code prohibit the rebuilding of a non-conforming structure or the reinstatement of a non-conforming use if the structure is destroyed by fire, elements or other cause, by more than fifty percent. LEGAL DESCRIPTION Lot Six (6), Block Two (2), of Mission Heights Addition Replat in the City of Farmington, San Juan County, New Mexico Otherwise located at 1013 W. Apache St. GENERAL INFORMATION Applicant Steve and Tina Trujillo Property Owner Steve and Tina Trujillo Location of Property 1013 W. Apache St. Nature of Petition The petitioners are requesting a variance to allow for the potential of rebuilding a non-conforming building and reestablishing a non-conforming use if the single-family residence is destroyed by more than 50 percent. Applicable Regulations City of Farmington Unified Development Code (UDC): Section 9.2.4 states: Destruction or demolition. If a nonconforming use or structure containing a nonconforming use (see section 9.3.3) is destroyed by fire, the elements or other cause, it may not be rebuilt except in conformity with the provisions of this UDC. In the case of partial destruction of such a use not exceeding 50 percent of its replacement value, reconstruction may be permitted by special use permit, provided, however: A. The size and function of the nonconforming use shall not be expanded; and B. Work on the restoration of the use must begin within six months and be completed within 12 months of the time of the calamity. Section 9.3.3 states: Destruction or demolition. If a nonconforming structure is destroyed by fire, the elements, or other cause, it may not be rebuilt except to conform to the provisions of this UDC. In the  ARB 20-43 Petition Report Page 2 case of partial destruction of a structure occupied by a nonconforming use not exceeding 50 percent of its replacement value, reconstruction may be permitted by the special use permit, provided, however: A. The size and function of the nonconforming use shall not be expanded; and B. Work on the restoration of the use must begin within six months and be completed within 12 months of the time of the calamity. Zoning GC-General Commercial Existing Use Residential Surrounding Zoning North: MF-L – Multifamily and MU-Mixed Use. Navajo Mission School Land Use South: GC – General Commercial. Single & Multifamily mix East: GC-General Commercial. Single & Multifamily mix West: GC-General Commercial. Single & Multifamily mix Public Notice Publication of Notice of this petition appeared in the Daily Times on Sunday, September 20 2020. Property owners within 100 feet were sent notice by certified mail on Wednesday, September 16 2020. A sign was posted on the property on Friday, September 25, 2020. Staff Beth Escobar, Planning Manager BACKGROUND Per Section 9.1.2 of the UDC: The use of land, use of a structure, or a structure itself; including but not limited to substandard parcels, or structures not complying with applicable dimensional standards, shall be deemed to have nonconforming status when each of the following conditions are satisfied: A. The use or structure does not conform to the regulations prescribed in the district in which such use or structure is located and was in existence and lawfully constructed, located and operating prior to, and at the time of the event that made such use or structure nonconforming. B. The event that made such use, structure, lot or parcel nonconforming was one of the following: annexation by the City of Farmington, adoption of this UDC or a previous Zoning Ordinance, acquisition of land by the city for public purposes, amendment of this UDC, or by court order. C. The nonconforming use or the use occupying the nonconforming structure has been operating since the time that the use or structure first became nonconforming without abandonment, as abandonment is defined in section 9.2.5, cessation of a nonconforming use. According to the San Juan County Assessor’s database, the residence at 1013 W. Apache was constructed in 1960.  ARB 20-43 Petition Report Page 3 The current property owners purchased the property in 2008 and have completed substantial remodeling. The property has been used as a single-family residence continuously since this purchase. This property qualifies for legal non-conforming status. Staff has been unable to verify when the GC-General Commercial zoning was applied to this strip of West Apache Street. It appears to have been in place since adoption of the current Unified Development Code in 2007. Future Land Use Plan Designation This property is designated Residential, Single-family Urban on the 2002 Future Land Use Plan. West Apache is a minor arterial in the Farmington Major Thoroughfare Plan. Legal, Non-conforming Use Law The concept of legal, non-conforming property, or grandfathering, has been in existence since the first zoning laws adopted in the early 1900’s. In general, the prohibition against rebuilding a non-conforming structure or reestablishing a non-conforming use if destroyed by more than 50 percent is included in zoning regulations in order to attempt to bring the property into conformance with existing zoning regulations and the current comprehensive plan. A brief survey of zoning regulations of other municipalities in New Mexico shows there is no consistency in codes related to legal, non-conforming issues. Some cities prohibit rebuilding or reestablishment no matter the percentage of destruction, and some cities to not prohibit rebuilding at all. INPUT FROM NEIGHBORS: No formal comments have been submitted at the time of this report. Vicinity Map  ARB 20-43 Petition Report Page 5 Aerial Map of Property  ARB 20-43 Petition Report Page 6 Future Land Use Plan Designation ANALYSIS Variance Criteria – Section 8.12.4, UDC A variance may be granted only where a literal enforcement of the Code provisions would result in unnecessary hardship for a particular property. In order to grant a variance, the Administrative Review Board (ARB) must make a positive finding of fact concerning each of the following or, if a positive finding of fact cannot be made that the ARB specifically describes the circumstance that would outweigh the strict requirement for a positive finding of fact and determine that the variance will not be a public detriment: 1. That special conditions and circumstances exist, which are peculiar to the land, structure or building involved and are not applicable to other lands, structures or buildings in the same district; and, furthermore, that they are not self-imposed, self-created or otherwise the result of actions by the applicant. Per the petitioner’s application, they purchased the property in 2008 and reconstructed the single-family residence existing at this address. Mr. & Mrs. Trujillo have lived in the residence since that time. They now wish to refinance and perhaps sell the property. Current lending practices make it difficult to secure financing on a residence that could not be rebuilt if destroyed by fire or other natural disaster by more than 50 percent. This criterion IS met. 2. That a literal interpretation of the provisions of the Code would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of the Code. Other single-family properties in Farmington within single-family residential zoning could obtain re-financing or financing. This criterion IS met. 3. The applicant demonstrates that the request is a minimum easing of the Code requirements, making possible the reasonable use of the land, building or structure. This request is a minimum easing of the code and would allow the property owner to have the full use of his land. The existing use as a single-family property has been in place for an extended period of time without creating any issues. Rebuilding either the residence would not impact the neighborhood. This criterion IS met.  ARB 20-43 Petition Report Page 8 4. That the granting of the variance is in harmony with the general interest, the general purpose and intent of the Code, and is not injurious to the neighborhood or otherwise detrimental to the public welfare. The granting of this variance will not change the current use on the property. The requested variance is in harmony with the general interest and the general purpose and intent of the Code. Granting of the variance will allow for the full replacement of a single-family residential use. There are several single-family residences along this section of West Apache Street. This criterion IS met. 5. That the proposed variance will not permit a use not otherwise allowed in the underlying district. Although single-family residential is not a permitted use in the General Commercial zoning district, the designation as legal, non-conforming entitles this property to the use and structure that currently exist. The variance being requested is to vest the single-family use even if the structure is destroyed by more than 50 percent. This criterion IS met. 6. That no nonconforming use of neighboring lands, structures or buildings in the same district and no permitted use of lands, structures or buildings in other districts has been or shall be considered grounds for the issuance of a variance. No nonconforming uses, structures or buildings in the same district have been considered as grounds for this variance request. This criterion IS met. 7. That the applicant would suffer an unnecessary hardship if the variance requested were denied. Denial of the variance would prohibit the property owner from refinancing or selling the property. This criterion IS met. CONCLUSION The Community Development Department concludes that approval of ARB 20-43 is a minimum easing of the code, meets the intent of the code and is a property that has characteristics unique enough to allow for the reconstruction and reestablishment of a  ARB 20-43 Petition Report Page 9 single-family structure and use should the existing building be destroyed by more than 50 percent. RECOMMENDATION The Community Development Department recommends approval of Petition ARB 20- 43 from Steve and Tina Trujillo for a variance from Sections 9.2.4 and 9.3.3: Non- conformities, Destruction or Demolition, of the Unified Development Code with the following stipulation: 1. Any new construction shall comply with current building and fire codes. 2. Dust control and noise mediation shall be in place for any new construction.  ARB 20-43 Petition Report Page 10 PLANNING MEMO COMMENTS SUMMARY ARB 20-43 1013 W APACHE ST ARB 20-43 Petition Report Page 11 ARB 20-43 Petition Report Page 12 ARB 20-43 Petition Report Page 13 ARB 20-43 Petition Report Page 14  ARB 20-43 Petition Report Page 15 NOTICE OF PUBLIC HEARING VARIANCE REQUEST PETITION NO. ARB 20-43 ARB 20-43 Petition Report Page 16 ARB 20-43 Petition Report Page 17 ARB 20-43 Petition Report Page 18