Planning and Zoning

Planning & Zoning Commission April 10 th, 2013 Minutes City Council Chambers The regular meeting of the Planning and Zoning Commission was called to order at 7:00 p.m. by Chairman Phil Garcia. Upon roll call, the following were present: Chairman P. Garcia Vice-Chairman Mraz Commissioner J. Fuhs (Sr.) Commissioner Pawlowski Commissioner Wilson Commissioner Dooley Commissioner MacKenzie-Chavez Presented to the Chairman and Commissioners for their approval were the minutes of the March th 13 2013 meeting. Commissioner Dooley motioned for approval of minutes as presented. Seconded by Commissioner Mraz and Commissioner Pawlowski, A.V.A. Motion Carried. Chairman Phil Garcia administered the oath required by state lawforpublicforu,n. ITEM ONE: CASE #13-01000002: Request by Jessica Landavazo-Guillen, property owner, for vacation of a seven (7’) ft. x one hundred and twenty (120’) ft. portion of the Street Right- of-Way which will allow placement of a manufactured home on property. The property is located at 708 and 710 S. 9°’ Street, more particularly described as the east 40’ of Lot 8, Block 10, of Vogel Addition and 2.78’ x 43.1’ adjoining the east 40’ of Lots 9 and 10, Block 10 of Vogel Addition. CB began by summarizing his memo and explained that the lots being discussed originally were approximately one hundred and eighty feet (180’) deep. The lots were later reduced to forty feet (40’) deep via Quit Claim Deed and Special Warranty Deed. This significantly reduced the lots developable area and greatly limited the size of any structure that may be located on the properties. Due to the shallow nature of the lots, the property owner cannot meet the setback requirement for the RM-5 Multiple-Family Residential Zoning District. For this reason, the property owner is requesting a vacation of a portion of the 9°’ Street right-of-way frontage; which will increase the depth of the lots to allow for placement of the home in order to meet the required setbacks. CB then provided a detailed description of the lots and explained that due to the vacation, Commission will only be able to provide a recommendation to the Gallup City Council. The recommendation will be presented to the Council at their regular meeting scheduled for April 23, 2013. If approved, the transfer of land to the current property owner will be done by quit claim deed. Chairman Garcia asked if he is correct in stating that should the current property owner acquire property to the rear (west) of the lots then this vacation would not be necessary. CB replied that is correct, but currently the property behind these lots is owned by Mr. Orin Sowers, Armored Electric, and at this time we do not know if that will happen. CB added that there are issues with encroachments into the right of way all the way up the street with the other existing properties, so the City is looking into sometime in the future continuing with vacating the right of way — — of the properties located to the north on t9 h Street and bringing them into compliance. This will remove any encroachments and clear any clouds on the titles of those properties. Chairman Garcia asked what would happen if we ever needed to widen the street. CB replied that a sixty foot (60’) right of way currently exists so if we needed to reduce it, we could. But, he added, there should be no need to widen the street. The only thing that we may need to do is any necessary repairs to infrastructure such as water and sewer and things of that nature. Chairman Garcia asked if under the Constitution of the United States, for the state of New Mexico anti-donation rule, will the property owner be required to purchase the property from the City and have it appraised. CB explained that whenever we vacate a right of way that has been dedicated for public use that land will revert to the current property owner. Chairman Garcia stated that there was a time where that was not the case. He asked if there has been a change in the interpretation of the anti-donation clause. CB replied that the anti-donation clause does not apply when we are vacating a right of way that was dedicated for public use. The rule applies if the City were to simply give a parcel of land that was City owned, or if we were to provide services to a private developer that would be providing public funds to a private entity which — — would be a violation of the anti-donation clause. Commissioner Dooley asked, with regard to the existing wall that would be coming down, is there also an existing sidewalk? CB replied that we will examine the condition of the existing sidewalk as part of the review process when placing the home on the property. If we determine that the sidewalk is in need of repairs, we will make the requirement at that time. Commissioner Dooley asked for clarification will the existing sidewalk area be included in the vacation or — not. CB replied that it will not, it is only the area up to the existing wall (he pointed it out on the overhead screen) that will be vacated. Mr. Michael Guillen, property owner, stated that he has spoken with Mr. Sowers, owner of property to the west, and they discussed the purchase of fifteen feet (15’) x one hundred twenty feet (120’) of property to the immediate west of the lots. He further explained that beyond the fifteen feet (15’) there is a ditch, so he is only attempting to purchase the property between the ditch and his lots to extend the backyard. Chairman Garcia asked if any part of the ditch or arroyo on his property. Mr. Guillen replied that it is not. Chairman Garcia referenced the handwritten portion of the letter accompanying the application which states that it is. Jessica Landavazo-Guillen, property owner informed the Commission that she had added that comment per the request of Roman Herrera, Planning Coordinator —which explains why it was handwritten in after the fact. Chairman Garcia asked her if it was her testimony that, although stated in the letter, no part of the arroyo or ditch is located on the property owned by her. She replied in the affirmative. Motion by Commissioner Dooley to recommend approval of this item as presented based on Staff findings to City Council at their meeting scheduled for April 23’, 2013. Seconded by Commissioner Pawlowski and Commissioner Mraz, A.V.A. Motion Carried. Planning & Zoning Commission Meeting April 10 th, 2013 Minutes Page 2 of 8 Chairman Garcia reminded the applicants that they will need to appear before the City Council on April rd 23 2013. ITEM TWO: CASE #13-00700001: Request by Fuhs Industrial Park, LTD, PTNS, property owner, for a Conditional Use Permit to allow a pre-school in an Industrial Zoning District. The property is located at 506 Frances Street; more particularly described as Lot 2, Fuhs Addition. Prior to discussing this item, Commissioner Fuhs, applicant, recused himself, stepped down and seated himself in the audience. CB summarized his memo and explained that a preschool is permitted as a conditional use within the Heavy Commercial (C-3) District therefore it is permitted as a conditional use within the Industrial (I) District. However there are specific use regulations tied to this type of use, so those will have to be met in order to approve and be in compliance with this request. CB read to the Commission the five specific use conditions that were listed in his memo and must be complied with. Chairman Garcia asked Mr. Fuhs, applicant, if he was in agreement with all of the conditions. Mr. Fuhs replied that he is not. Chairman Garcia asked Mr. Fuhs which of the conditions he had umbrage to. Mr. Fuhs replied that the building has ten thousand (10,000 sq ft) square feet of usable space, adding that the second floor is not completed. He had a survey and appraisal done on the property some time ago (by a registered appraiser) and they listed the property as having a little over nine thousand (9,000 sq ft) square feet. The building was originally built as a detoxification center (NCI) and he had received funds from the state of New Mexico and Friendship Services, Inc. They operated it for a while and when they built the new NCI Center, they relocated. After which, the building was leased to McKinley Area Services for the Handicapped (MASH) and they moved into building sixteen (16) after that. In 1992 he formed a non-profit organization, at that time his wife had Alzheimer’s and he was trying to help her and others with the disease as well. Although she never stayed at the adult daycare center, many people were helped and the Catholic Diocese operated it. After that, Rehoboth Christian Hospital took over and finally Care 66 took over they were there for a number of years. Mr. — Fuhs provided to the commission copy of letter the he had written to the State and pictures of the property. He stated there is plenty of parking, approximately twenty six (26) spaces, part of which would be used for handicapped parking spaces. He also provided pictures of what he called “the vacated part that was never made before and that was done intentionally so we would not have to sprinkle the building” and a picture of the playground that is located directly behind the building. The view shows the playground when it had grass and different things that could be fixed up for the children. Mr. Fuhs added that he has information stating that anything over twelve thousand (12,000’) square feet has to be sprinkled but if it is below that it does not have to be sprinkled, adding that this building is below ten thousand (10,000’) square feet. He concluded by stating that this building has consistently been used by “do-gooder’s” wanting to help people and was never really used as a commercial building. However, some of the renters could be considered commercial. Regarding the matter of off street parking, Chairman Garcia asked Mr. Fuhs how many employees would be working in the preschool. Mr. Fuhs replied that he was unsure exactly how many employees, he knows of the two young ladies that would be teachers but he did not know Planning & Zoning Commission Meeting April 10 th 2013 Minutes Page 3 of 8 how many employees ultimately would work there. Chairman Garcia stated that the number of employees would be important to determine the number of parking spaces that would be required. Mr. Fuhs replied that he is sure there would be plenty of parking spaces, there are eight (8) spaces available on three (3) sides of the building a total of twenty four (24) spaces. He — added that if additional spaces ever become necessary, there are more available. It was determined that meeting the required number of parking spaces would not be an issue. The issue will be the automatic sprinkler system installation requirement. CB commented that the fire marshal had visited the building and it was his determination that the building exceeded the twelve thousand (12,000’) square feet. He added that we have to take into consideration the total square footage of the building. If you have two floors in a building you have to use square footage of both floors because it is considered open space, which is how the building code reads. It does not matter how much of the building you intend to use. Chairman Garcia commented that it is a safety issue. CB added that it is a life safety issue. After a lengthy discussion regarding the automatic sprinkler system requirement, Chairman Garcia stated that without knowing the correct square footage of the building the Commission will be unable to make a determination if it will be required. CB also added that if we table this item until next month’s meeting, we could ask the fire marshal to be present to testify as to the fire code requirements and what his findings were. Commissioner Wilson asked CB if the current fire code had gone into effect since the prior occupancy of the building. CB replied it had. Commissioner Wilson asked if any of the previous tenants wanted to occupy the building today, would they be required to comply with installation of the automatic sprinkler system. CB replied that more than likely they would, but another issue is that the building changed occupancy types. The current building code refers to uses or occupancy groups. He explained that there are different types of uses which will put them in different categories; he provided examples of a few of them. The use or occupancy of the building will determine the intensity of the life safety precautions that will need to be taken. In this case it is an educational use, which puts it into a higher hazard category. Commissioner Wilson asked if any building in Gallup, New Mexico that was built prior to our adopting the 2009 International Building Code and changes its type of operation could they have the same — — type of burden imposed on it, which could render buildings basically obsolete. This could affect many buildings in our city. CB replied that he is correct, however what price can be placed on a life. Commissioner Wilson commented that there is a difference in occupancy types between those using the building during the hours of 8:00 am to 4:00 pm and those that house individuals overnight. CB agreed, but added that we, as a municipality, do not have the authority to waive, vary or change any of the requirements to the building code we have adopted. We are obligated by law to enforce our current building code, reason being, people have lost their lives in buildings for whatever reason so now the codes are in place to prevent future loss. CB agreed - — that we have buildings in our community that, if the occupancy type changes, could bring a tremendous financial hardship on owners; but code does not look at a financial burden to be an “out” in providing life safety. Chairman Garcia added that if there was a loss of life, and the Commission had chosen to waive the requirement, that could leave the City wide open. Commissioner Wilson commented that he completely understands and he did not want to come across as contentious, he just wanted everyone to understand the burden on our community if our buildings change occupancy. CB mentioned that he hears about the “financial burden” quite a bit, he provided an example of why some of our buildings codes are the way they are. He relayed an incident of a night club in Rhode Island, the code was ignored, and as a result one hundred (100) people lost their lives. Planning & Zoning Commission Meeting April 10 th 2013 Minutes Page 4 of 8 Mr. Fuhs asked CB whose decision is it that the “open space” has to be counted as flooring. CB replied that it has to be counted as “space”. Chairman Garcia clarified “space” by adding that it is all figured into the square footage. It is not only the portion that is being occupied but the entire square footage of the entire building. Once again, CB stated that it is necessary to have the fire marshal present to expand upon why the code is requiring the sprinkler system and how he came to the square footage that he did. Chairman Garcia asked Mr. Fuhs if he would like to continue this item till the next meeting. Mr. Fuhs replied in the affirmative and asked if we were talking about having the local fire marshal present. He also asked what if he was to get a different ruling from the State. CB informed Mr. Fuhs that the State defaults to the local jurisdiction, so they really could not help him. Chairman Garcia stated that Mr. Fuhs would like to continue this item and asked for a motion for continuance to the next regularly scheduled Planning and Zoning Commission Meeting. Motion by Commissioner Mraz to continue this item to the May t8 h, 2013 Planning and Zoning Commission Meeting. Seconded by Commissioner Dooley, A.V.A. Motion Carried. ITEM THREE: CASE #13-00200003: Request by City of Gallup and McKinley County School Board, property owners, for Concurrent Preliminary and Final Major Subdivision Plat approval of Red Rock Park Subdivision. The property is located on a portion of the southeast quarter (SE 1/4) of Section 11 of the Red Rock State Park Addition; containing 45.47 acres M/L. CB explained that the City of Gallup currently owns the property and that is located to the east of the Red Rock State Park. The City wishes to subdivide the property and McKinley County School District wishes to purchase a portion of the property to construct an elementary school. CB pointed out, using the plat on the overhead projector, which portion would remain with the City and which portion will be used for the school. He added that there are some right-of-ways that need to be dedicated via the plat as well. The roads already exist, but have never been officially dedicated as right-of-ways. A few things will be accomplished with this plat; we will be subdividing the properties in order to sell portions, we are dedicating right-of-ways (Challenger Road and Teistar Road), we will also be dedicating utility easements even though — the various utilities already exist, the easements were never dedicated. CB also explained that there is another issue on the east side of the property, there two structures that are encroaching on City property. There are squatters residing on that portion of the land. For this reason, we will be subdividing that portion and the property will probably be deeded over to them. The individuals living there have been there for a very long time, we do not know exactly how this came to be, they may have thought it was allotment land. The portion that will be provided to the squatters is Lot 3 on the plat and is only 1.44 acres in size. The entire area will be zoned as Rural Holding Zoning District for now and Lot 3 does not comply with the minimum lot size for this particular zoning district which is two acres; but as we want to deed over the least amount of land necessary, we will allow that lot to remain at 1.44 acres in size. Chairman Garcia asked about the anti-donation clause. CB explained that the City Attorney is handling the ownership transfer, and he will make sure we do not violate any rules. Chairman Garcia commented that he liked that the plat will be dedicating the easements, cleaning up the area that is encroaching on City land and the streets are being named. Planning & Zoning Commission Meeting April 10 th, 2013 Minutes Page 5 of 8 Commissioner Mraz asked CB if this area in a floodplain, adding that he has seen that area in up to three feet of water. CB agreed that it is a good question and that the City has made McKinley County School District aware of the situation. The issue will have to be addressed at time of development they will probably have to build up out of the floodplain. Commissioner Mraz - expressed his concern in allowing a school to be built in that area. CB said he certainly understood, adding that the Code states development has to be built up out of the floodplain so — he foresees a lot of fill dirt having to be brought in and grading the area to drain properly. Commissioner Wilson asked about the strip of land to the left of Challenger Road, will that area be developed? CB replied that several utilities are going through there. If anyone should propose to develop there, they would have to relocate those utilities. He explained that the land was one large tract of land and now we are subdividing to indicate lots. The area is already somewhat split up in the same way we are officially subdividing. Commissioner Wilson asked about the pipeline, will the school be located near the pipeline? CB informed him that we had conducted a taskforce meeting and representatives from all the utilities involved in this area were invited. No one noted any problem with encroachments in any of the required easements and distances. Commissioner Wilson noted that the distance from the pipeline was his concern. CB explained that by law we are only required to be a certain distance from pipelines and common sense says we should be as far away as possible. In this case, they will not be in any violation of any rules or regulations pertaining to that. Commissioner Wilson was satisfied knowing they will build at the distance required. Commissioner Dooley asked if the property beyond the City limits is reservation land. CB replied that he believes it to be Indian allotment land. Commissioner Dooley asked about the 1.44 acres being deeded, is there an ingress and egress to that property. CB replied that there is. She then asked if new owner would be able to move the Hogan and shed and then sell the land? CB replied that it could happen; they would own the land and would have the right to do so. He added that he could discuss the matter with the City attorney, and it could be that deed restrictions be placed on the land. But that would be a matter for the legal department to determine. He would certainly bring it to their attention and advise that the commission asked about the matter. Chairman Garcia reminded CB to ask about the anti-donation clause as well. John T. Cresto, McKinley County School District, explained that the district has had their architect and the State of New Mexico Public School Facility Authority look at the floodplain issue, they are confident that they can design and build at this location. The new school will alleviate the flooding problems they have at the existing elementary school, which he described as horrendous. Commissioner Mraz asked Mr. Cresto if they would be designing for a one hundred year flood or a five hundred year flood. Mr. Cresto replied that he was not sure which was considered in the design. He also assured the Commission that they will be very careful to not disturb too much of the existing vegetation and any other type of thing that helps mitigate flooding. Jennifer Henry, Rosebrough Law Firm, PC, stated that she was here on behalf of the McKinley County School District. She is present tonight in order to answer any questions the Commission may have. Planning & Zoning Commission Meeting April 10 th, 2013 Minutes Page 6 of 8 Chairman Garcia addressed a procedural question to CB, is there not a requirement that the North arrow on a plat always point in the northerly direction to the topside of the plat? CB — noted that Chairman Garcia is correct but he thinks that due to the size of the parcel we are dealing with, the engineer thought it best to use this layout. Chairman Garcia commented that this plat is very confusing and will be confusing to others in the future. He asked if there is a procedure that needs to be followed. CB agreed that the north arrow should always point to the top of the plat/map. He will certainly have DePauli Engineering correct the plat. Commissioner Wilson asked for clarification regarding the 1.44 acres being deeded to the parties living on that portion of land. He asked if there is a resolution or other document that the Commission must legally read/hear before they can take any action. He added that he has a problem with that issue. Commissioner Dooley stated that she did as well. CB replied that there is no resolution. He added that the parcel of land has to be subdivided before the City can do anything with it. So once it is subdivided they can determine how the property will be transferred. CB noted that after ownership is transferred, he could bring to the Commission a copy of the document the legal department utilized to complete the transfer. He added that we can not do anything with that portion of land until it is subdivided. Chairman Garcia agreed. Commissioner Wilson asked if “encroachment is encroachment”, why is the City making any kind of accommodation. Chairman Garcia addressed his comment and stated that the Commission is not making any kind of accommodation regarding the encroachment; the Commission is simply addressing the subdivision plat and noting that there is an encroachment. What the City chooses to do with the land is a legal matter for the City, not for the Commission to consider. We need to review the matters of whether or not the subdivision plat meets the minimum standards, the minimum square footage, etc. Chairman Garcia asked CB if the property was currently owned jointly by the City of Gallup and the McKinley County School District. CB replied that it is. Chairman Garcia then asked if there will be an exchange of quit claim deeds by lot and block when development of the school begins the building process. CB replied that is correct. Commissioner Mraz asked if the Commission can approve the plat with a stipulation that the Commission is to be notified as to how the City plans to handle encroachment issue prior to transferring ownership to the individuals living on the 1.44 acres. CB replied that as the Commission has no authority to stop whatever decision the City makes as to how to handle the matter, he can bring to the Conmiission the documentation after the fact. Commissioner Mraz stated that once they review the document, should they have any additional questions they can address the City Attorney. Chairman Garcia noted that the plat is correctly showing the encroachment, and that should be sufficient as far as the Planning and Zoning Commission is concerned. Commissioner Dooley noted that she is wondering why the City would be willing to transfer 1.44 acres, it seems to be a lot of land for a small bit of encroachment although she — realizes that it is not a matter for the Commission to consider. Chairman Garcia reminded the Commission that under adverse possession, the individuals living there may have better title than the City anyway, so the entire point may be mute. They will simply have to show that they have been living there open and notoriously for ten years. Planning & Zoning Commission Meeting April 10 th, 2013 Minutes Page 7 of 8 Motion by Conmiissioner Mraz to approve this item with the addition of having DePauli Engineering correct the plat and have the north arrow face the northerly direction, at the top side of the plat. Seconded by Commissioner Wilson, A.V.A. Motion Carried. ITEM FOUR: CASE #13-00200002: (CONTINUED FROM MARCH 13, 2013 MEETING) A request by Gallup Holding & Investment Corporation DBA Gallup Development Corporation and Carbon City, LLC, property owners, for Concurrent Preliminary and Final Plat approval of East Gallup Toltec Subdivision, Unit 1. The property is located on the 3500 Block of East Historic Highway 66 more particularly described as Replat No. 1 of the Boyd Subdivision Unit 1 and Lot 2 Indian Hills Subdivision and an un-platted parcel; Containing 7.6 acs mll. CB informed the Commission that Mr. Murphy asked the Planning Department to make the request to the Planning and Zoning Commission to once again continue this item. They would like to continue this item to the May t8 h, 2013 meeting as Mr. Murphy and the City Attorney were unable to come to a consensus on the subdivision agreement. Chairman Garcia commented that there is nothing the Commission can do without Mr. Murphy’s acquiescence to the subdivision agreement. t8 h Motion by Commissioner Mraz to continue this item to the May 2013 Planning and Zoning Commission Meeting. Seconded by Commissioner Pawlowski, A.V.A. Motion Carried. There was no discussion on Information Items Five and Six. CB reminded the Commission that the New Mexico League of Zoning Officials will be having the Commissioners training in May 2013. He highly recommended the training to all the Commissioners and encouraged them to consider attending. He asked if anyone is interested in attending, please contact Mary Austin so we can get the registration submitted. Commission Adjourned at 7:54 p.m. PLANNING & ZONING COMMISSION PHILIP O. GARCIA, CHAIRMAN ATTEST: CLYD1(C.B.) STRAIN SECRETARY TO PLANNING & ZONING Planning & Zoning Commission Meeting April 10 th, 2013 Minutes Page 8 of 8