EXTRA-TERRITORIAL ZONING AUTHORITY MEETING. February 16, 2011 THESE ARE NOT VERBATIM MINUTES, THESE ARE SUMMARY MINUTES

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1 EXTRA-TERRITORIAL ZONING AUTHORITY MEETING February 16, 2011 THESE ARE NOT VERBATIM MINUTES, THESE ARE SUMMARY MINUTES MEMBERS PRESENT: Commissioner Billy Garret Councilor Miguel Silva Councilor Nathan Small Chairwoman Karen Pérez OTHERS PRESENT: Chuck McMahon, Director Jonathan Kesler, DAC Planner Jennifer Robertson, CLC Planner Dave Medeiros, CLC Attorney 1. CALL TO ORDER: called the Regular Meeting of the Extra-Territorial Zoning Authority to order at 5:35 p.m., Wednesday, February 16, 2011 in the County Commission Chambers of the Doña Ana County Government Center, 845 N Motel Blvd., Las Cruces, NM. 2. ROLL CALL: Present Present Here Here Councilor Silva Arrived 6:00 3. ANNOUNCEMENTS: 4. APPROVAL OF MINUTES: January 19, 2011 moved to approve the minutes of January 19, seconded the motion. By a vote of 4-0-0, minutes were APPROVED. 5. CHANGES TO THE AGENDA: NONE 6. PUBLIC INPUT: NONE OLD BUSINESS REVIEW/DISCUSSION/ACTION 7. MINOR SUBDIVISIONS AND LARGE LAND AREA SUBDIVISIONS REPORT UPDATE FROM THE CITY OF LAS CRUCES COMMUNITY DEVELOPMENT DEPARTMENT: Jonathan Kesler, DAC Planner stated no update per Ms. Jennifer Robertson from the City of Las Cruces. ETA Meeting February 16,

2 8. ETZ SUBDIVISION CODE OVERVIEW AND AMENDMENT PROCESS UPDATE AND AMENDMENT PRIORITIZATION FROM THE CITY OF LAS CRUCES COMMUNITY DEVELOPMENT DEPARTMENT: Jonathan Kesler, DAC Planner stated no update per Ms. Jennifer Robertson from the City of Las Cruces. 9. REVIEW OF BY-LAWS: NEW BUSINESS REVIEW/DISCUSSION/ACTION Jonathan Kesler stated that the changes requested of updating the language in the Bylaws and Reasonable Notice were incorporated last year. Those changes were brought forth this year. asked for confirmation of the City alternate. Chuck McMahon, Director, stated that Councilor Olga Pedroza was the alternate for the City. Jonathan Kesler stated that he would be passing out the current information on Authority members and would appreciate obtaining updated information. moved to approve Bylaws as submitted. seconded the motion. Dave Medeiros, Attorney, stated that Bylaws need to be reviewed and changes requested, but not necessarily have to be approved since they are still in effect. stated confused with item 11 where it asked for approval of ETZ Bylaws and not the Authorities. Dave Medeiros stated that he believed nothing needed to be done, and the Bylaws would be enforced. stated that he had reviewed the Bylaws and they were good. 10. REVIEW OF REASONABLE NOTICE OF MEETING REQUIREMENTS: stated that this was the amended revision as requested last year and no further changes were noted. Dave Medeiros stated that this was different from the Bylaws and needed to be approved annually per the Open Meetings Act. moved to approve the Reasonable Notice of Meeting Requirements and Attachment A 2011 Combined Extra-Territorial Zoning Calendar for the Doña Ana County and City of Las Cruces Meeting Dates. seconded the motion. clarified that the meeting dates are for the Zoning Commission Bylaws and Reasonable Notice, but there was not an Exhibit A because the Authority s calendar was approved last meeting. By a vote of 4-0-0, motion was APPROVED. 11. APPROVAL OF THE ETZ BY-LAWS: Jonathan Kesler stated that no changes. ETA Meeting February 16,

3 By a vote of 4-0-0, motion was APPROVED. 12. APPROVAL OF THE ETZ REASONABLE NOTICE OF MEETING REQUIREMENTS AND THE 2011 CALENDAR YEAR SCHEDULE OF MEETINGS: Jonathan Kesler stated that the ETZ Commission was requesting a new meeting time of 6:00 p.m. moved to approve the ETZ Reasonable Notice of Meeting Requirements and the 2011 Calendar Year Schedule of Meetings. seconded the motion. By a vote of 4-0-0, motion was APPROVED. 13. CASE #V10-008/KHERA: The applicant, Sushila A.K. Khera is requesting a Variance of twenty-six feet (26 ) to the one hundred foot (100 ) minimum lot width requirement of ER 4 Zoning to accommodate a driveway he built on his parcel, rather than his neighbor s property to the north. If approved, a Replat of the two (2) lots would create one lot with a front setback width of seventy-four feet (74 ) and both lots would remain the same size; 1.01-acres each. The parcels are located in Picacho Hills within Section 17, Township 23 South, and Range 1 East, and are addressed as 1141 and 1161 Boling Lane. They are described as Lot 2A, and 3A of Block B of Linda Vista Estates, Phase 1, recorded in the Doña Ana County Clerk s office on July 1, 2004, in Book 20, Pages , and can be further identified by Map Codes Nos (Lot 2A) and (Lot 3A). disclosed the fact that she had obtained her first engineering job with Mr. Khera and would be willing to recuse herself from hearing the case if members of the Authority or the public would like her to do so. Jonathan Kesler, DAC Planner, sworn in: Stated that case was originally scheduled for December, but postponement was requested. Presented case and based on the findings of fact including the applicant s meeting all three requirements, Staff recommended approval of Case V10-008/Khera. : Requested clarification that variance was really for the neighbor s lot and not for the applicant s property; Requested evidence of support from the neighbor that this was acceptable because it is the neighbor that will be getting the variance; Asked if it was legal to grant a variance to an adjacent property; Asked for clarification as to the variance being granted was done appropriately to the right person through this action; ETA Meeting February 16,

4 : Stated that made an excellent point as to the determination of who will the Authority grant the variance to assuming that both parties are in agreement; Asked Mr. Utrecht if he would be willing to accept the variance as it would actually be granted to him; Apologized to Mr. Khera and Mr. Utrecht for the postponement of the case due to not having a quorum. Frank Utrecht, Property Owner, sworn in: Requested through mediation that the lot line be moved; Originally there was an easement that was self-granted and encroached on the building of the driveway; Do not wish to have an easement attached to their land because of liability issues; If decided to sell, the property would lose value because of such an encumbrance; Requested variance to meet the requirement of the existing width; Stated that he was willing to accept the variance. Sushila A.K. Khera, Applicant, sworn in: Stated that there was legal action brought against Mr. Khera by the Utrecht s; A court mediation resulted and an agreement was reached; The encroachment of the easement would be corrected by this action. Jonathan Kesler responded the following: Stated that the issue had been discussed in mediation and would be addressed by the applicant. Dave Medeiros responded the following: Stated that the technical answer would be no unless the property owner whose variance would be applied to would agreed to it; Stated that the property owner was presently in the audience, and the Authority would be granting the variance to the property that is requesting the variance through the mediation; Stated that applications are presented in one name through the action of an agent, and does not see this case from being any different from that situation; The property owner consented and the leg work was done on the owner s behalf so it would fine. moved for approval of requested variance of twenty-six (26 ) feet to parcel owned by Utrecht at 1161 Bowling Lane as presented by his neighbor Mr. Khera who lives at 1141 Bowling Lane. seconded the motion. Further stated that the variance would not constitute a special privilege, it is not detrimental to the health and public safety, and not doing it would result in a necessary physical hardship. Councilor Silva By a vote of 5-0-0, motion was APPROVED. apologized to Mr. Khera and Mr. Utrecht for not being present in the last meeting and causing the postponement of the case. ETA Meeting February 16,

5 14. CASE # Z10-010/SALOPEK TREE SERVICE, LLC: The applicant, Salopek Tree Service, LLC, is requesting a Zone Change from EC 2 (Community Commercial, 5,000 sq. ft. new lot minimum) to EI 1 (Light Industrial, 5,000 sq. ft. new lot minimum) on a 1.45-acre parcel in order to operate a pecan packaging and processing business. The property is located in Mesilla Park, within Section 32, Township 23 South, Range 2 East, and is described as being Tract 11D-154B2, NMPM of the USRS Surveys, recorded on May 26, 2009 as Instrument # in the Doña Ana County Clerk s office. It is addressed as 101 Watson Lane, and can be further identified by Map Code # The ETZ Commission, at its regularly scheduled meeting of January 19, 2011, recommended approval of this Zone Change Request by a vote of asked if Mr. Kesler needed to be sworn in again. Dave Medeiros responded that if in case of appeal it would be on the record so each case the presenter would need to be sworn. Jonathan Kesler, DAC Planner, sworn in: Presented case and based on the Applicants meeting the appropriate goals and policies of the Compensation Plan, the ETZ Ordinance and the Evaluation Criteria of Section 2.1.D, Staff recommended approval of Zone Change Request Case #Z10-010/Salopek. : Asked what was the zone code for the East side across Main Street; Noted that the zoning for the southwest and north sides was residential; Stated that he relied on the packet and the EI1 Industrial category did not list anything about food processing; Asked if this use would not be permitted under EC2; Councilor Silva: Asked for clarification that the business was for the shelling and storage of the nuts; Noted that the Engineering Department requested an STA. Further stated that under the determination criteria, it talked about the previous businesses and asked if this would be allowed as a substitution for the traffic analysis or would they still be responsible for an STA; Asked what analysis was anticipated in view of Evaluation Criteria, 2.1.D.8 or was this just to be there in case further analysis was required; Asked if an environmental analysis could be foreseen as the production would add dust during the shelling process, and if necessary, would it be required; : Concern is that when a zone change is done, it opens it up to all of the other stuff on the list; Intentions are clear, understand what is being done, and fit in with neighbors, but concerned with the fact that once given the zone change, the intentions could turn out to be a full scale operation shell and wash this would be a different consideration; Asked how comfortable would applicant be with a condition that states that if the purpose would change or the business expanded, would return to the Authority for reconsideration Noted that it is accessible to transport which would prevent trucks from using Watson Lane or Carver Lane. Asked what would be an appropriate condition, if considered, to place without being unreasonable to make sure that they had another shot if they decided to change the use; ETA Meeting February 16,

6 Stated that there was no intent to limit the use of the property, but to look at more of the pecan processing as people are peculiar when it comes to food processing for obvious smells, dust and lots of water; : Stated that there have been other zone changes in the area and can justify the zone change by bringing it into conformance with others; If the zone change is restricted more than the others, it would be a misapplication of zoning; In terms of intent, it is very clear and strongly supported; In the future, if there are particular problems that are brought in by the public or members of the Authority as to the uses listed, then it should be addressed at that time; Suggested moving forward with the minimum of conditions. : Stated the case was in conformance with the Comprehensive Plan, would bring consistency with the other zone changes, and is in compliance with the past practices that have been in use on the land. Greg Salopek, Applicant, sworn in: Trying to acquire a better facility for storing pecans as they are packaging 25 kilo or 50 lb. bags; Pecans are pre-cleaned from the farms and are shipped out in a couple of days; Get certification from FDA; The other side of the building would be for packaging for local stores; Shelling operation would entail 1200 lbs. a day max with zero dust at this point and time; Everything needs to be approved by the Department of Agriculture before commercial issue; Looking for better a better distribution outlet on Watson Lane; Close to the rail and to interstates. Frank Paul Salopek, sworn in: States that cleaning would be done by cleaning plants throughout the valley; Would come in semitrailers Also benefiting the company next the proposed warehouse; Stated that in the foreseeable future, he sees no construction, just renovations to make the process run smoothly; Jonathan Kesler responded the following: Stated that the City zoning would not be shown by the DAC GIS department, but south of Main would be commercial; Stated that the fit for the proposed operation would actually fall under Section 3.1.M.1, The Purpose, and also under 3.1.M.3.a, Permitted Use, number 19 Storage building and warehouses with no condition. Further stated that this would be a function of the proposed operation, a key component would the housing before distribution; Stated that EC2 is Community Commercial which is designed for retail type operations and noted that there would be a decrease in traffic as there will be no type of store in this operation; Stated that the business was for shelling and storage of the pecans as the harvesting was done on their lands and this operation would provide the storage and limited processing that was indicated before being shipped out; Stated that an STA had been submitted instead of a TIA because of a lower volume of traffic that is anticipated to the Engineering Dept and to the Department of Transportation while seeking the driveway access. The NMDOT would determine if a TIA would be required; The driveway permit would be an example of this as it is an expense requiring a paperwork and fees being paid to NMDOT; Given the indication of the operation, an environmental analysis would not be anticipated; ETA Meeting February 16,

7 Dave Medeiros responded the following: Suggested that for what they are describing in what they want to do, that operation to the limits that they have described is analogous to something on the list and is in conformance with the overall purposes of the zoning category; It can be approved with the condition that the analogy only goes so far as to the operation which has been described by the applicants; Cannot say the only use for this property under the zoning category will be; Everything listed as a permitted use should be allowed as a permitted use; If conditionally approve to allow operation, if sold in the future, a restaurant without drive in service would be allowed under the use; If there are some things that are particularly egregious, and there is evidence, you can knock some of those, but cannot do a blanket, the only use for this property is this operation and nothing else ever - it would tie up the property unreasonably and unreasonable to have someone with such a limitation on their property; Over time, businesses have to change and modify; A condition that can be posed off the set list and the approval would be based off of what was described. moved to approve the zone change. seconded the motion. stated that there was evidence that the previous zoning was defective, and the Miller criteria should be followed. concerned with the potential of others uses in the future and the key is in the Purpose Statement and concerned with the potential harm to the surrounding residential areas. He asked how to delimit the scope in terms of consistency of land use to a particular area. Jonathan Kesler stated that the Comprehensive Plan map had been reviewed and does show that area as commercial and industrial as part of the long range Noted that Premier have been operating on that site since pre-etz. Dave Medeiros noted that Mr. Kesler provided with the Comprehensive Plan map for his and other Board members review. Councilor Silva By a vote of 5-0-0, motion was APPROVED. 15. STAFF INPUT: Jonathan Kesler stated that he would be passing out a couple of orders for signatures for recording purposes. 16. AUTHORITY INPUT: Councilor Silva welcomed to the board. noted that there are some areas in the east and east of A Mountain that moved in the ETZ area. There are people who have home based businesses that were permissible under the County rules, but not under the ETZ rules. Discussed this issue with Chuck McMahon to come up with the list of businesses and a policy to either grandfather these businesses or create a list of business that are allowable ETA Meeting February 16,

8 under the ETZ and amend the ordinance. A few years ago, there was a revision that removed some of those businesses from the list. Would like to discuss this issue and come up with an ordinance. Will be meeting with the group of people from the Talavera area and would try to get a list of businesses that are in operation. asked if these businesses were still in the county. Chuck McMahon stated ETZ Zoning ordinance has a home occupation provision. The main problem with it is in section 3.4A, no person other than members of the family residing on the premises shall be engaged in such home occupation, i.e. having an assistant would be a problem, traffic would an issue. Under provision 3.4I, it states no personal physical service in connection with home occupation requiring the client to come to the residential shall occur at the residence. It seems that the provisions with the ordinance might limit a person s ability to use. The example given, music lessons, the provision may be a little more onerous that the Authority would like to see where limiting people or traffic to come to the residence. asked if willing to consider if a list is compiled after seeing what kind of businesses are in operation in the East area. Chuck McMahon suggested compiling a list of permitted uses as home occupations and craft better provisions recognizing that people will go to the residences. Councilor Silva asked if Mr. McMahon was suggestion that a district would have Led Zeppelin and this district is classical music and only violins in this district. Chuck McMahon stated that he will have staff look at the provisions and would like suggestions from the Authority as certain type of businesses that should be considered to put together and run through the process. asked if there was a database of business licenses, categories that could be sorted by addresses. Chuck McMahon stated that they are entered by map codes or parcel id codes. suggested asking GIS to sort that so not to rely on who happens to show up in a public meeting. It would be Highway 70 area and east of Talavera area. Chuck McMahon stated a general provision would be done and would not be limited to certain districts. Businesses could be performed in any residence and not just in certain areas of the ETZ. stated no but would like to see the type of businesses that could be in trouble. Chuck McMahon stated would look at what records are available of home occupations and come up with a list and reasonable restrictions on those uses. Would bring something for discussion to get more direction from the board and then go through the formal process to amend the ordinance. 17. ADJOURMENT: Councilor Silva moved to adjourn the meeting. seconded the motion. adjourned the meeting at 6:52 p.m. Officer: Extra-Territorial Zoning Authority Submitted by: Isabel De La Rosa, Recording Secretary ETA Meeting February 16,