Planning & Zoning Commission

PLANNING & ZONING COMMISSION Minutes to the July 31, 2012 MEETING Members Present: Mr. Ralph Brown-------------------------------------------------------------Chair Mr. Toby Gross-----------------------------------------------------------Member Mrs. Shirley Childress---------------------------------------------------Member Mr. Riley Armstrong-----------------------------------------------------Member Mr. Chris Cortez----------------------------------------------------------Member Mr. Eddie Carrillo---------------------------------------------------------Member Mr. Bruce Gwartney-----------------------------------------------------Member Members Absent: None Council Present: None Staff Present: Mr. Louis Najar-----------------------------------------------------City Engineer Mrs. Barbara Patterson-------------------------------------------City Attorney Mr. Michael Vickers------------------------------------------------City Planner Mr. Louis Jaramillo--------------------------------------Zoning Administrator Ms. Amber Copeland--------------------------------------Zoning Technician CALL TO ORDER Chair Brown called the meeting to order and asked those who wished to speak to sign in. MINUTES Chair Brown called for approval of the minutes of the June 26, 2012 minutes. Mr. Armstrong moved to approve the minutes as presented. Mrs. Childress made the second and all voted in favor. SWEARING IN Chair Brown swore in the audience and Staff. INFORMATION ITEMS There were no information items. Mrs. Childress made a motion to waive the reading of the ‘Land Use and Zoning Considerations’ and ‘Finding of Facts’ for the following case. Mr. Armstrong made the second. The motion passed by a vote of seven in favor and zero against. CASE 12-010: A Replat Of a Public Right-of-Way, a 20' Alley AND Lots 1-12, Block 8 of New Lykins Subdivision in the ETZ, located on the west side of the 6000 block of South Main Street, Allsups Convenience Stores, Inc./Owner, DSA Architects. LLC./Agent. Angela Grapsas, agent, spoke in favor of the request. She stated the applicant had brought the request before the Commission in June. Chair Brown stated this was the request tabled at the July meeting and has since been approved by the ETZ Commission. Mr. Jaramillo stated County and City Staff had met to discuss the request. He stated the County has jurisdiction to vacate but that the City shares jurisdiction on replats in the ETZ. He stated changes had been made to the plans to eliminate semi trucks on the property except for deliveries and that the protests to the request had been dropped. He stated a new development plan showing the changes would be provided for City Council. MOTION  Mr. Cortez made a motion to approve Case 12-010 based on Findings of Facts and Land Use and Zoning Considerations. Mrs. Childress made the second. There was no further discussion. The motion passed by a vote of seven to zero. Mrs. Childress made a motion to waive the reading of the ‘Land Use and Zoning Considerations’ and ‘Finding of Facts’ for the following case. Mr. Gross made the second. The motion passed by a vote of seven in favor and zero against. CASE 12-012: A Vacation of Rights-of-Way and Easements/Replat, Lots 8-14 of Petro Industrial Park, located on Petro Drive, Don Determan/owner, Wagener Engineering/agent. Mr. Jaramillo asked the Commission to disregard the last paragraph of the Land Use and Zoning Considerations. Todd Wagener, agent, spoke in favor of the request. He stated Petro Park had been created years ago. He stated the lots would be reconfigured and that Petro Drive would be vacated to allow for a larger facility. Mr. Najar stated a site review had been completed and that the City's requests had been accommodated so that the sewer line was now in the easement. He stated all utility companies had signed off. Mr. Vickers stated the bike trail had formerly been located within the property's boundaries but the plat granted right-of-way to accommodate the bike trail. Mr. Jaramillo recommended an additional Finding of Fact to allow the street name to be changed from Petro Drive to Determan Lane to assist emergency personnel in finding the correct address. Mr. Cortez stated he felt the last sentence of Finding of Fact #7 should be stricken from the record and stated Staff should consider the effects of having industrial development next to surface water. Mr. Vickers stated it had been included because that was the current zoning of the property. Mr. Jaramillo stated if the Commission wished to make that change a motion would need to be made. Mr. Vickers stated a recommendation to approve by City Council would be needed to approve the request. MOTION Mr. Armstrong made a motion to approve Case 12-012 based on Findings of Facts and Land Use and Zoning Considerations with the omission of the last sentence in Finding of Fact #7 and the addition of Finding of Fact #10 changing the name of Petro Drive to Determan Lane. Mr. Gross made the second. There was no further discussion. The motion passed by a vote of seven to zero. Mrs. Childress made a motion to waive the reading of the ‘Land Use and Zoning Considerations’ and ‘Finding of Facts’ for the following case. Mr. Gwartney made the second. The motion was approved by a vote of seven in favor and zero against. CASE 12-013: A Final Plat- La Bella Vita Plaza Planned Unit Development (P.U.D.), Tract C of La Bella Vita Plaza Summary Plat, located at the northwest corner of Union Avenue and 19th Street, Eagle Creek Villas, LLC/owner, Wagener Engineering/Agent. MOTION Mr. Jaramillo stated the Final Plat was not included in the packet of June and that although a Final Plat is a separate request it is still linked to the Planned Unit Development request. He stated a summary plat had been done to allow development to take place on Lot 1 of La Bella Vita Plaza Summary Plat. Mr. Armstrong asked if the case had been heard by Council and Mr. Vickers stated it had been postponed until the August meeting. Todd Wagener, agent, spoke in favor of the request. He stated it was proposed to be a five lot subdivision but to move forward the current request had been modified to include the other four lots. Mr. Cortez asked if the request was an interim step. Mr. Vickers stated the P.U.D. request was appealed by the City and would be heard at the August Council meeting. He stated Staff and the developer were working to draft a list of acceptable uses for the P.U.D. but that the current request was for a plat, not a subdivision. Chair Brown asked if the plat had already been approved by the Commission. Mr. Vickers stated a zone change to a P.U.D. had been approved based on Findings of Facts. Mr. Vickers stated that decision was approved by the City and Chair Brown asked why. Mr. Vickers stated the decision had been possibly similar to spot zoning and 2 that it had allowed the developer the ability to utilize all C-1 uses in the development. Chair Brown asked if the Commission had acted on the recommendation of Staff and Mr. Vickers stated it had. Mr. Armstrong asked if Staff and the developer were in agreement with the process at that time. Mr. Wagener and Mr. Rhoads stated they were. Mr. Gross made a motion to approve Case 12-013 based on Findings of Facts and Land Use and Zoning Considerations. Mr. Armstrong made the second. There was no further discussion. The motion passed by a vote of seven to zero. Mrs. Childress made a motion to waive the reading of the ‘Land Use and Zoning Considerations’ and ‘Finding of Facts’ for the following case. Mr. Gwartney made the second. The motion was approved by a vote of seven in favor and zero against. CASE 12-014: A Replat- La Sierra Townhomes- Residential Planned Unit Development (P.U.D.), Lots 15-33 of La Sierra Townhomes, located on Jack McClellan Drive, La Sierra, LLC. and Rex Smith/owners, Smith Engineering/agent. MOTION Mike Douglas, agent, spoke in favor of the request. He stated the replat would create six larger lots and would give Lot 15 a side yard by moving the southwestern lot line. Mr. Jaramillo stated Staff supported the request and that the Comprehensive Master Plan's Land Use Plan recommended the area to be low-density residential. He stated the request would take the area from its current med- to high-density to the recommended low-density zoning. Mr. Cortez asked what the setbacks in the Findings of Facts were based on. Mr. Jaramillo stated they were based on the La Sierra Townhomes Replat. Mrs. Childress made a motion to approve Case 12-014 based on Findings of Facts and Land Use and Zoning Considerations. Mr. Carrillo made the second. There was no further discussion. The motion passed by a vote of seven to zero. Mrs. Childress made a motion to waive the reading of the ‘Land Use and Zoning Considerations’ and ‘Finding of Facts’ for the following case. Mr. Armstrong made the second. The motion was approved by a vote of seven in favor and zero against. CASE 12-017: A Variance of 4' to the Required 20' Front Yard Setback in an R-3 Residential District- to be known as Tract B of S-T Summary Plat, Lot 2, Block 2 of Tijmor Subdivision, 1104 East La Paloma Lane, Trace Ryan and Shaun Ryan/owners. Rusty Ryan spoke in favor of the request. He stated a mistake had been made when the home was constructed and that it was 4' too close to the front property line. He stated the builder did not get a survey before construction and that the wrong stakes were pulled to determine the lot lines. He stated the home encroached on the lot to the west. Mr. Ryan stated Shaun and Trace Ryan discovered the error during closing when a Survey Inspection Report (SIR) completed by Rains Surveying was completed. He stated their first action was to inform the owner of the subdivision what had happened and offer to purchase the lot to the west because it was now going to be a smaller lot. He stated Wagener Engineering was hired to do a summary plat which would adjust the lot lines to accommodate the encroachment. Mr. Ryan stated a Certificate of Occupancy (C of O) had been issued and they owners believed all steps had been taken to resolve the issue. He stated when the summary plat was presented Staff discovered the front setback violation. He stated traffic was not affected, the sidewalk would not be blocked by vehicles, the aesthetics of the neighborhood were not altered, and that no obvious hazards had been presented by the violation. He stated the owners acknowledged a mistake had been made but that they had done everything they could to correct it. He stated they would like to explore alternatives that did not include altering the home itself. He stated it is a $250,000.00 home and they would prefer not to alter it. Mr. Gross asked if any documentation had been provided by the owner of the subdivision to confirm there were no objections. Mr. Ryan stated he had nothing in writing except for the plat but 3 had spoken to the owner. Mr. Cortez asked if Shaun and Trace Ryan had purchased the lot with the encroachment. Mr. Ryan stated they were in the process of purchasing the property. Mr. Armstrong asked if the newly purchased lot would be 1102 or 1106 and Mr. Ryan stated it would be 1102. Mr. Armstrong asked who owned 1106. Mr. Ryan stated Tijmor Subdivision owned 1106 and that they signed the summary plat. Mr. Armstrong asked if a precedent would be set and Mr. Vickers stated it would set a precedent for the adjoining lots. Mr. Cortez asked if stipulations could be set for the adjoining lots. Mrs. Patterson stated owners of other lots could not be bound by a decision on this request. Mr. Cortez stated they had signed the plat and Mrs. Patterson stated the stipulations had not been made on the plat. Mr. Wagener stated he couldn't speak for the other owner because he was not present. Chair Brown asked if 1106 could match the setback, could 1108 use the same setback. Mrs. Patterson stated 1108 had already been built. Mr. Cortez asked if 1102 had a different setback as a corner lot. Mr. Ryan stated he had been told the setbacks are shown on plans and precedents can't be set. Mr. Cortez stated the State of New Mexico does not require a professional surveyor for construction layouts. He stated curves are challenging and that a surveyor should be utilized. He stated the northwest corner of the building appeared to be in the setback. Mrs. Patterson discussed the criteria and standards for a variance and approval of plats. She stated a condition could be placed on the variance stating approval is contingent upon a plat being received stating that the adjoining lots may not match the erroneous setback. Mr. Cortez stated he felt the applicants had inconvenienced themselves and had done all they could to rectify that. He stated he had an issue with Finding of Fact #5 and the curve on the front of the lot constituted an abnormal lot. Mrs. Patterson stated a financial hardship is not considered an undue burden by the Court of Appeals. She stated a portion of the home could be removed and that Staff can't grant the variance. She stated the Findings of Facts could be modified with a motion. Mr. Jaramillo stated the subdivision was reviewed and approved by the previous Commission. He stated the curve on the lot was present when it was approved and was not found to be a hardship or a cause for a variance. He stated variances were requested for corner lots. Mr. Cortez stated the approved site plan did not reflect the curve in the lot. Mr. Jaramillo stated hand drawn site plans are no longer accepted. Mr. Najar stated that contractors are required to follow rules and regulations when building homes. He stated there are several pending cases regarding violations that must be removed and that Staff recommended not approving the request. Mr. Armstrong stated two officials had signed the C of O and asked who must sign before they are issued. Mr. Jaramillo stated a C of O requires signatures by the Building Inspector, the Plumbing Inspector, the Fire Department, Zoning Staff, and Engineering. He stated Miller Butts, Building Inspector, and Gus Garcia, Plumbing Inspector, had signed the C of O. Mr. Armstrong asked if the other signatures were forthcoming or if the issue was discovered after the fact. Mrs. Patterson stated the C of O was not forwarded to the appropriate departments. Mr. Armstrong stated the applicants had done what they could to correct their mistake and that Staff had not done its part to catch the mistake early on. Mrs. Patterson stated the site plan that was approved by Staff was not followed and that if all departments had signed the C of O the applicant would still be in the same position with a home that was not built in the correct location. Mr. Armstrong stated it left Staff free of responsibility. Mrs. Patterson stated Mr. Garcia and Mr. Butts approved the structural and plumbing portions of the building. Mr. Armstrong stated the mistake could have been caught if Staff had forwarded the C of O to all departments. Mr. Jaramillo stated the front yard violation still exists. Mr. Cortez stated setbacks cannot be enforced without a surveyor and that since one is not required to build a home the process cannot be checked. Mr. Jaramillo stated requiring a surveyor would add another cost that would ultimately be passed on to the developer. Mr. Najar cautioned the Commission that asking for a variance in the case of such a mistake would send a message that it's cheaper to ask for forgiveness than to correct a mistake. Chair Brown stated it would be possible to draft Findings of Facts to correct the issue with conditions. Mr. Jaramillo stated conditions would be set for the new owners. Discussion on procedures and Findings of Facts ensued. MOTION Mr. Armstrong made a motion to approve Case 12-017 based on Findings of Facts and Land Use and Zoning Considerations . Mr. Carrillo made the second. Mrs. Patterson stated the Findings of Facts were not sufficient to grant a variance. Mr. Armstrong asked if the case could be postponed until Findings of Facts were correct. Mrs. Patterson stated the requirements for a 4 variance were not met and that if the Commission disagreed with the Findings of Facts that they must be modified. Mr. Armstrong made a motion to approved Case 12-017 based on Findings of Facts with the following modifications: 3. Normally, approval of the variance request would set a precedent for adjoining lots as stated in Article 23, Section 5.E of Zoning Ordinance No. 10-02, the grant of the variance to applicant in this case is conditioned upon the applicant obtaining approval of the adjacent lot owners as demonstrated by the adjacent owners signatures on a summary plat agreeing to abide by the zoning ordinance setbacks and waiving the right to utilize the same setback as the variance granted to the applicant. 4. Lot 2 is unusually shaped, but does not have any abnormal topographical conditions. 5. Proof of peculiar, exceptional or undue hardship has been demonstrated by applicant. The motion passed by a vote of seven to zero. Mr. Armstrong stated Staff did not complete the proper procedures and did not catch the mistake. Mrs. Patterson stated it is the builder's responsibility to construct a building properly. Mr. Cortez stated surveys should be encouraged for all new construction. Other Business: Mr. Jaramillo asked if the Commission would be willing to recommend to Council that all C of Os must be signed by all five required departments. Mr. Armstrong asked why that would be necessary. Mr. Gross stated C of Os can be obtained with promises to complete work later and that those promises may not be fulfilled. He stated contractor's should be held to their promises and that the builder in Case 12-017 should have been at the meeting to testify. He stated the City did not make the mistake but that the builder did. He stated he agreed Staff's procedures do need review. Mr. Vickers stated restoration permits do not require licensed contractors and that it changes could lead to property owners may not be able to do their own repairs. Mr. Cortez stated restorations would rarely affect property lines. Mr. Gross stated contractors should be a part of the cost of major restorations. Chair Brown stated the Commission should not tell Staff how to conduct procedure and asked Staff to bring in an outline of how procedures are conducted for Commission to review. The meeting was adjourned at 8:24 p.m. _________________________________ ______________________________ Ralph Brown- Chair Shirley Childress- Vice Chair 5