Chapter 18.85 VARIANCES AND SPECIAL USE PERMITS

When practical difficulties and unnecessary hardships inherent with the land, or actions inconsistent with the general purpose of this title occur due to the strict interpretation and enforcement of any of its provisions, the board of adjustment, upon its own motion may, or upon the application of any interested person, shall initiate proceedings for consideration of a variance from the provisions of this title with conditions as may be necessary to assure that the purpose of this title will be observed, and that the health, safety, and welfare of the community be secured, and that substantial justice be done, not only to the applicant, but to the persons other than the applicant, who might be affected by such variance. [Ord. 94-06 § 1; prior code § 11-2-7.1]

18.85.020 Purpose of variance.

The sole purpose of any variance shall be the modification of the specific regulations of this title and to assure that no property because of unique circumstances shall be deprived of any rights that other properties have in the same vicinity and zone. Variances are administrative acts, and the authority to approve or disapprove a petition for a variance is vested in the board of adjustment. Self-imposed hardships shall not be justification for granting a variance. This section does not authorize the board of adjustment to permit any use prohibited by this title, nor to grant densities of use in excess of those specified. [Ord. 94-06 § 1; prior code § 11-2-7.2]

18.85.030 Variance not to constitute title amendment.

A variance is not an amendment to this title or the maps which are a part of this title, nor shall a variance be used as a procedure to change the use of land or structures not permitted within the district in which an application for a variance is made. [Ord. 94-06 § 1; prior code § 11-2-7.3]

18.85.040 Required showing for variance.

Before any variance may be granted, it shall be shown:

A. That there are exceptional or extraordinary circumstances or conditions applicable to the property.

B. That such variance is necessary for the preservation and enjoyment of a substantial property right possessed by other property in the same vicinity and zone, and denied to the property in question.

C. That the granting of such variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity.

D. A nonconforming use of neighboring lands or structures shall not be considered grounds for the issuance of a variance. [Ord. 94-06 § 1; prior code § 11-2-7.4]

18.85.050 Variances may include conditions.

Variances may be granted with conditions and for such periods of time as the board of adjustment or the board of trustees shall deem to be reasonable and necessary so that the objectives of this title shall be achieved. [Ord. 94-06 § 1; prior code § 11-2-7.5]

18.85.060 Variances involving minor deviations.

When in the public interest by action taken at a regular meeting, without publishing or posting of notices, the board of adjustment may consider cases involving slight modifications in the provisions of this title, limited to:

A. Area requirements may be reduced by not more than 10 percent.

B. Yard requirements may be reduced by permitting portions of a building to extend into and occupy not more than 20 percent of the area of a required yard adjacent to the main structure. [Ord. 94-06 § 1; prior code § 11-2-7.6]

18.85.070 Voiding of variances.

Each variance granted under the provisions of this title shall be void unless:

A. The construction or use authorized has been commenced within six months after the granting of the variance.

B. All conditions of the variance are met.

C. If circumstances beyond the control of the applicant prevents starting of the project within the specified six-months time limit, the board of adjustment may, upon request, extend the time limit for starting for a maximum time of an additional six months. [Ord. 94-06 § 1; prior code § 11-2-7.7]

Article II. Special Use Permits

18.85.080 Town planning commission may recommend approval of special use permits.

Permits for special uses specifically listed in MTC 18.55.010 and 18.55.020, and for other uses which the planning commission finds impractical or impossible to classify specifically, may be granted by the board of trustees under these procedures. [Ord. 94-06 § 1; prior code § 11-2-8.1]

18.85.090 Granting of some special use permits not permitted.

The planning, zoning and historical appropriateness commission shall recommend or disapprove any special use permits for any use which:

A. Is specifically permitted by this title in a zone which is less restrictive than the zone where the property is located.

B. Is specifically prohibited, by the provisions of this title, in the zone where the property is located.

C. Can be specifically classified as a residential, commercial or industrial use. [Ord. 2004-01 § 4; Ord. 94-06 § 1; prior code § 11-2-8.2]

18.85.100 Showing for special permit not required.

The procedure for all applications for special use permits is set forth in Article I of this chapter for variances excepting that such action will be recommended by the planning commission and final action by the board of trustees. Showings required in MTC 18.85.040(A) and (B) are not needed. For special uses, public benefit resulting from the proposed facility shall exceed any detriment to the public health, safety and general welfare or injury to property or improvements in the area. Special use permits may be granted with conditions and limitations by the board of trustees as appropriate. [Ord. 94-06 § 1; prior code § 11-2-8.3]

Article III. General Procedure Provisions – Variances and Permits

18.85.110 Applications for variances and special use permits.

The board of adjustment, for variances, and the board of trustees, for special use permits, shall prescribe the form in which applications shall be made and the type of information to be submitted by the applicant. Applications shall not be accepted unless they comply with requirements. [Ord. 94-06 § 1; prior code § 11-2-9.1]

18.85.120 Petitioners statement of justification.

Each application for a variance or special use permit shall have a written statement of facts by the petitioner showing why the granting of the request is needed in order that the provisions of MTC 18.85.040 may be met. When the appropriate board believes the justifications are not within the scope of the variance or special procedure, the applicant shall be so informed. Filing of an application shall not constitute any indication of approval. [Ord. 94-06 § 1; prior code § 11-2-9.2]

18.85.130 Supplementary information.

An application for a variance or special use permit shall also include two sets of a description of the property and plans for the proposed use. The plans shall be drawn to scale and shall show the location of structures and other features on the site. [Ord. 94-06 § 1; prior code § 11-2-9.3]

18.85.140 Filing fee for variance and special use permit.

A. A filing fee of $310.00 shall be paid to the town of Mesilla upon filing each application for a variance or special use permit. The fee shall be for the purpose of defraying the expense of postage, posting, advertising and other incidental costs of the proceedings. Payment of the filing fee shall not be construed to be approval of the proposed variance or special use permit. The filing fee is nonrefundable.

B. Where additional review by the town of Mesilla is required above and beyond normal review requirements due to complex, unforeseen, or unique circumstances such as consultant fees for engineering or legal services, then the town may charge an additional review fee to defray the cost of such review. Review fees shall be only for professional services rendered to the town, to assist them in reviewing the application for a variance or special use permit. When an additional fee is deemed necessary, the fee shall be determined between the town clerk-treasurer and applicant. [Ord. 2004-03 § 6; Ord. 94-06 § 1; prior code § 11-2-9.4]

18.85.150 Setting hearings.

All applications for variances, or special use permits as provided in this title, shall be set for public hearing by the planning commission or board of adjustment. The date of the first hearing shall be not less than 30 days nor more than 45 days from the time of filing the application. [Ord. 94-06 § 1; prior code § 11-2-9.5]

18.85.160 Notices.

Notice of time and place of public hearings for variance or special use permit may be given by posting one sign in front of the property and posting additional signs at 300-foot intervals for large properties with 600 feet or more frontage. The posted notice shall contain the heading “Notice of Proposed Variance,” “Special Permit” or “Notice of Proposed Special Permit,” in letters at least one inch in height. The notice shall also contain information about the location of the property, the proposed use and the time and place at which the public hearing will be held. All owners of property located within 100 feet radius of the external boundaries of the property shall be notified by registered mail. [Ord. 94-06 § 1; prior code § 11-2-9.6]

18.85.170 Investigations.

The board of adjustment or planning commission or board of trustees shall require its own members, or its staff, to investigate the facts about an application set for hearing, including an analysis of precedent cases to provide all necessary information on each case. [Ord. 94-06 § 1; prior code § 11-2-9.7]

18.85.180 Hearings may be continued without public notice.

If testimony at a hearing cannot be completed on the day set for the hearing, the chair may, before recess, publicly announce the time and place of the continued hearing and no further notice shall be required. [Ord. 94-06 § 1; prior code § 11-2-9.8]

18.85.190 Action on variance or special use permit.

Not more than 40 days following completion of its hearing on the application for a variance or special use permit, the board of adjustment or planning commission or board of trustees, by adoption of a resolution shall:

A. Grant or deny the variance or special use permit subject to specified conditions; and

B. Adopt written findings which specify all facts relied upon by the reviewing body in rendering its decision, stating that these facts fulfill or fail to fulfill the requirements of this title, and stating the reasons for any conditions imposed. Resolutions shall be numbered consecutively in the order of their filing and shall become a part of the permanent records of the reviewing body. Failure of the reviewing body to act on any variance or use permit application within 40 days after the hearing shall be deemed to be approval of the application by the board. [Ord. 94-06 § 1; prior code § 11-2-9.9]

18.85.200 Files shall include testimony.

A summary of all pertinent testimony offered at public hearings about the filed application and the names and addresses of persons testifying at all public hearings before the reviewing body shall be recorded and made a part of the permanent files of the case. [Ord. 94-06 § 1; prior code § 11-2-9.10]

18.85.210 Notice of decision.

Not later than 10 days following the decision that a variance or special use permit be granted or denied, a copy of the resolution shall be mailed to the applicant at the address shown on the application. [Ord. 94-06 § 1; prior code § 11-2-9.11]

18.85.220 Effective date – Time for appeal.

The decision of the reviewing body other than the board of trustees shall become final and effective 10 days after adopting the resolution granting or denying the variance or special use permit unless within 10 days after mailing the resolutions an appeal in writing is filed with the board of trustees. The filing of an appeal within the time limit shall stay the effective date of the order until the board of trustees has acted on the appeal. [Ord. 94-06 § 1; prior code § 11-2-9.12]

18.85.230 Transmission of records to board of trustees.

Upon filing of a written appeal to the board of trustees, the town clerk-treasurer shall transmit to the board of trustees certified copies of all pertinent material in the board or planning commission files. [Ord. 94-06 § 1; prior code § 11-2-9.13]

18.85.240 Board of trustees to hold public hearing.

Within 30 days following the receipt of the written appeal the board of trustees shall conduct a public hearing, notice of which shall be given as provided in MTC 18.85.160. The hearing before the board of trustees shall be a hearing de novo and all interested persons may appear and present evidence. [Ord. 94-06 § 1; prior code § 11-2-9.14]

18.85.250 Board of trustees resolution on findings and decision.

The board of trustees shall announce its findings and decision by resolution not more than 20 days following the hearing, which shall state the facts and reasons which, in the opinion of the board of trustees, make the granting or denial of the variance or special use permit necessary to carry out the general purpose of this title. [Ord. 94-06 § 1; prior code § 11-2-9.15]

18.85.260 Decision of board of trustees to be final.

The decision of the board of trustees shall be final on an appeal; provided, that where the board of adjustment’s action has been a denial of a variance, the board of trustees shall not grant a variance or eliminate or modify any condition imposed by the board except by two-thirds vote of all members. [Ord. 94-06 § 1; prior code § 11-2-9.16]

18.85.270 Notice of board of trustees decision.

Not later than 10 days following the adoption of a resolution ordering that a variance or special use permit be granted or denied, a copy of the resolution shall be mailed to the appellant and to the board of adjustment for a variance and planning commission for a special use permit. [Ord. 94-06 § 1; prior code § 11-2-9.17]

18.85.280 Re-application.

No re-application for a variance or special use permit which has been denied shall be filed earlier than one year after a denial unless specific authority to do so has been granted by the board of adjustment or by the board of trustees. Any re-application for a variance or special use permit shall be considered as a new application, including the payment of a new filing fee. [Ord. 94-06 § 1; prior code § 11-2-9.18]