(A) The Zoning Commission. There is hereby created a Zoning Commission for the City of Elephant Butte.
(1) Purpose. The Zoning Commission is tasked with holding public hearings for requested variances, special use permits, and with hearing appeals of certificates, permits, or licenses denied by the Land Use Administrator. The Zoning Commission is further tasked with providing written recommendations to the City Council as to the approval, denial, or modification of a request for annexation, proposed subdivision platting or re- platting, zoning, allotted time extension, amendment of this code, or any other land use consideration within the zoning jurisdiction of the city based upon evidence received or information provided from city staff and the public.
(2) Membership. The Zoning Commission shall consist of three members and one alternate each to be appointed by the Mayor with the approval of the City Council. Each member of the Zoning Commission shall be a qualified elector within the city.
(a) Terms. Members shall serve staggered terms of two years each. The earliest appointed alternate shall fill the earliest vacancy. Incumbents who wish to remain on the Board must submit a letter of interest one month prior to the expiration of their term.
(b) Voting. A simple majority vote of a quorum of the Zoning Commission is required for approval on all Zoning Commission actions. A quorum requires not less than three members of the Commission present. An alternate member may vote only if filling a spot of an absent member. In order for a vote to be valid on a particular issue, a quorum must vote regarding the issue. A member who abstains from voting on an issue is deemed to not have voted on the issue. A member may only abstain from voting if he or she has a conflict of interest. A Planning and Zoning Commission shall follow the Conflict of Interest Statute for municipal officials, set forth in NMSA § 3-10-5. Any member of the Zoning Commission having a financial interest or possible interest in the outcome of any policy, decision or determination before the Zoning Commission shall disclose to each of the other members of the Commission the nature of his or her financial interest or possible interest. The financial interest or possible interest shall constitute a conflict of interest and the member shall recuse himself or herself from voting or participating in the discussion of that issue as a Commissioner. However, nothing herein shall disqualify the member of the Zoning Commission from participating in public comment in the same manner as any other citizen addressing the Zoning Commission on the issue.
(3) General responsibilities.
(a) Meetings. The Zoning Commission shall meet regularly on a quarterly basis but shall call special meetings to address matters that require a hearing in a timely manner.
(b) Open meetings. The Zoning Commission adopts the policy of the Statement of Open Meetings resolution requirement.
(c) Applications. All applications for city certificates, licenses, and permits, vacation of lot line/summary replat other than special use permits, shall be reviewed by the Land Use Administrator or designee. An unsuccessful applicant may request a hearing before the Zoning Commission for any decision related to the denial of certificates, licenses, or permits. Appeals from the Zoning Commission decisions concerning certificates may be brought before the City Council.
(d) Hearings. Hearings are required for the issuance of special use permits, variances, or zoning changes and shall be brought before the Zoning Commission. Denials of special use permits and variances may be appealed to the City Council. With respect to requested zoning changes, the Zoning Commission shall provide written recommendations to the City Council for final action.
(e) Amendments. Amendments to the city’s Zoning Code proposed by city staff, the public, or members of the Zoning Commission must be brought before the Zoning Commission for review. The Zoning Commission shall provide the City Council written recommendations concerning the proposed amendment. Nothing in this division shall prevent the City Council from determining that a change in the city’s Zoning Code is needed and initiating such an amendment of its own volition.
(B) The enforcement official. There shall exist a City of Elephant Butte Code Enforcement Officer.
(1) The Code Enforcement Officer shall be chosen by the Mayor with the approval of the City Council.
(2) The Code Enforcement Officer shall have the authority and duty to enforce the Zoning Code. The Code Enforcement Officer shall:
(a) Receive and approve or reject applications for zoning permits;
(b) Inspect any buildings and premises to determine Zoning Code compliance;
(c) Institute an appropriate action to prevent an unlawful act. Once there is a citation issued, all subsequent visits shall be with another person present;
(d) Restrain, correct, or abate a violation to prevent the occupancy of a building or land after a hearing;
(e) After a hearing, prevent any illegal act, conduct, business or use about the premises; and
(f) Notify the Zoning Commission and other applicable agencies of the violation.
(3) No zoning permit shall be issued by the Code Enforcement Officer except where compliance with the provisions of this code has been met.
(C) Legal non-conforming uses.
(1) Intent. Within the zoning districts established by this subchapter or zoning districts that may be established in the future there exist:
(a) Lots;
(b) Structures;
(c) Uses of lots and structures; or
(d) Land uses.
(2) Prohibited. Any of the above listed items that were lawful before this subchapter was passed but would now be prohibited, regulated or restricted under the terms of this subchapter or future amendments thereto are legal non-conforming. These legal non-conforming uses shall be allowed to continue, but any enlargement, expansion or extension of the non-conforming use or structure will be permitted only upon the non-conforming use or structure being brought into compliance with the requirements of this subchapter. Structures may be maintained and remodeled, but not enlarged unless in conformance with this subchapter. The provisions of this subchapter apply to all lots, construction (including enlargement, expansion, or extension of existing structures), and uses of land and/or structures that are not protected as legally nonconforming under this section.
(3) Abandonment. Whenever a legal non-conforming use has been discontinued for 90 days or more, the non-conforming use shall not thereafter be re-established and any future use shall be in conformance with the provisions of this subchapter, unless closed by order of a federal or state agency. The time of closure shall not count when determining the period of abandonment.
(D) Zoning permits.
(1) Zoning permit required. No construction or use of property shall be commenced prior to issuance of a zoning permit.
(2) Application. An application for a zoning permit shall include the following information and attachments, provided that the Zoning Administrator may waive those requirements deemed to be inapplicable:
(a) Proof of ownership. Applications must be submitted by the owner of the subject property or the owner's agent designated in writing.
(b) Survey. An accurate improvement survey, containing legal description and address of the property, not older than 36 months, prepared by a licensed New Mexico surveyor, provided, that the Zoning Administrator may accept a boundary survey in lieu of an improvement survey for applications that do not include the construction or placement of new improvements if the Administrator finds that the boundary survey is adequate to meet the requirements of this chapter. The Zoning Administrator may accept an older survey if satisfied that it accurately reflects the property and accurately identifies all utility, drainage and other public easements.
(c) Site plan. A site plan consisting of a scaled drawing or map of the property showing the location of existing and proposed streets, driveways, parking and loading sites, pedestrian walks, structures, drainage improvements, landscaped areas, utility easements, setbacks, and location of the septic tank, if any. If the septic system is not on the property, the site plan must indicate the lines going to and the location of the area where the group/community septic system is located.
(d) Infrastructure. An evaluation of the existing infrastructures' capacities to serve the needs for potable water, liquid waste disposal and solid waste disposal.
(e) Application fee. The appropriate application fee as designated in the fee schedule shall accompany the application.
(3) Approval of permits.
(a) Issuance of permit; double permit fee for violation. Upon approval of the application by the Zoning Administrator or the Zoning Commission, as applicable, and as subject to appeal, the Zoning Administrator shall issue a zoning permit. The Zoning Administrator shall notify the applicant in writing if the application has been denied, and the time for appeal shall run from the date of the notice. Any construction commenced prior to issuance of a zoning permit shall result in imposition of a permit fee in double the amount of the regular permit fee. Imposition of the double fee shall be in addition to, and not in lieu of, other penalties and enforcement remedies available to the city.
(b) Building permit.
1. No construction shall be permitted until a copy of the approved building permit and the construction drawings for such permit have been submitted to the Zoning Administrator. The zoning permit shall automatically expire 90 days after issuance unless the building permit and construction plans have been submitted to the Zoning Administrator with receipt acknowledged. Construction of any accessory building shall not commence prior to commencement of construction of the principal building, and neither the principal building nor any accessory building shall be occupied prior to issuance of a certificate of occupancy for the principal building. Issuance of a zoning permit shall constitute agreement by the applicant to site visits by the Zoning Administrator to determine compliance with these provisions. Construction or occupancy in violation of any of these provisions shall result in automatic voidance of the zoning permit. Upon such automatic voidance, the city may take such action as is necessary to abate the violation, including, but not limited to, issuance of a stop work order, filing of a complaint in Municipal Court, and application for injunctive relief in a court of competent jurisdiction.
2. Expiration of permits. A zoning permit that authorizes construction shall expire at the end of 12 months if construction has not been completed, and a certificate of occupancy issued, provided, that the planning commission may extend the period for good cause shown and with agreement by the applicant upon a reasonable completion schedule. The applicant shall provide a copy of the certificate of occupancy to the Zoning Administrator prior to occupancy of any of the improvements. In the case of placement of a manufactured housing unit, the applicant shall provide the Administrator with a copy of the approval of final inspection provided by the New Mexico Manufactured Housing Division of the Construction Industries Division.
(c) Manufactured housing permit. In addition to all other provisions of this section, an application for a zoning permit for placement of a multi-section manufactured home, a mobile home or a recreational vehicle shall require issuance of a placement permit by the Zoning Administrator. The applicant shall submit such surveys, site plans and other documents as deemed necessary by the Administrator to assure compliance with the provisions of this chapter. For placement of mobile homes or recreational vehicles, the applicant shall obtain a final approval from the administrator prior to occupancy. The Administrator shall be satisfied that placement, grading and utility connections are in compliance with applicable provisions of this code prior to final approval.
(4) Development of Red Lots; additional regulatory requirements and engineered development plan for zoning permit required.
(a) Conformity with zoning permit process. Zoning, grading or drainage permits may only be issued for areas which have been designated suitable by the City Drainage Master Plan or other adopted or accepted studies and changes in existing uses or proposed new uses must conform to the requirements of the Comprehensive Plan and applicable studies, reports, and Drainage Master Plan's recommendations. Development within designated Red Lots, shall require conformance with these studies and meet the development requirements contained herein in addition to the general zoning, grading, drainage, clearing and other land use regulations contained elsewhere in this code.
(b) Compliance. No structure or land shall hereafter be located, altered, or have its use changed without full compliance with the terms of this section and other applicable regulations.
(c) Abrogation and greater restrictions. This section is not intended to repeal, abrogate, or impair any existing easement, covenants, or deed restrictions. However, where this section and another ordinance, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail.
(d) Interpretation. In the interpretation and application of this section, all provisions shall be:
1. Considered as minimum requirements;
2. Liberally construed in favor of the governing body; and
3. Deemed neither to limit nor repeal any other powers granted under State Statutes.
(e) Warning and disclaimer or liability. The degree of erosion and flood protection required by this section is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. On rare occasions greater erosion impacts and floods can and will occur and flood heights may be increased by manmade or natural causes. This section does not imply that land outside the areas of erosion envelopes, special flood hazards, or uses permitted within the areas will be free from drainage or erosion damages. This section shall not create liability on the part of the community or any official or employee thereof for any drainage, erosion or flood damages that result from reliance on this section or any administrative decision lawfully made thereunder.
(f) Applications for zoning permits.
1. When an application for a zoning, grading and/or drainage permit is made, the burden of proof of appropriateness of the plan for property designated as a "Red Lot", is on the applicant.
2. Prior to the issuance of a zoning permit, the Floodplain Administrator, upon consulting the City Engineer, shall examine the plans and administer the provisions of this section as described within the section and Chapter 154 and render a determination of compliance or non-compliance to the Zoning Administrator. Cost for engineering services will be an additional cost of the zoning permit and will be borne by the applicant. The building, structure, or activity must be found to conform to each of these provisions:
a. Will not constitute a hazard to persons or property;
b. Will not divert water from or obstruct the natural flow of water in or out of the parcel of land;
c. Will not cause flooding of land outside the natural drainage course; and
d. Will not reduce or endanger the water-carrying capacity of the arroyo or drainage channel.
3. Additional requirements for development of Red Lots. In administering a review of a plan, the Floodplain Administrator shall:
a. Restrict or prohibit uses that are dangerous to health, safety or property in times of flood, or cause excessive increases in flood heights or velocities;
b. Require that uses vulnerable to drainage runoff, erosion impacts, floods, including facilities, which serve such uses, be protected against damage at the time of initial construction;
c. Control the alteration of natural floodplains, arroyos, stream channels, and natural protective barriers, which are involved in the accommodation of flood waters;
d. Control filling, grading, dredging and other development, which may increase erosion impacts and/or flood damage; and
e. Prevent or regulate the construction of flood barriers which will unnaturally divert flood waters or which may increase drainage runoff and/or flood hazards to other lands.
(F) Application for conditional use permits.
(1) Application requirements.
(a) Legal description of the property and street address;
(b) Proof of ownership, or when the applicant is not the owner of the property, proof of legal right to apply for the permit;
(c) A site development plan consisting of a scaled drawing or map of the property showing the location of existing and proposed streets, driveways, parking and loading sites, pedestrian walks, structures, drainage improvements, landscaped areas, utility easements and setbacks;
(d) An evaluation of the existing infrastructures' capacities to serve the use's needs for potable water, liquid waste disposal and solid waste disposal; and
(e) The appropriate application fee.
(2) Application. The application shall be evaluated for a conditional use permit based on the impact of the proposed use on surrounding properties and property owners.
(3) State and local permits. All necessary state and local permits must be approved prior to a conditional use permit becoming effective. This shall include permits necessary for the operation of a business.
(4) Non-transferability. Conditional use permits are site-specific approvals. A conditional use permit may not be transferred from 1 location to another location. If the owner or agent of a conditional use permit business wishes to move the business, the owner or agent must apply for a new permit for the proposed new location.
(5) Revocation of conditional use permits. Failure of the applicant to abide with the terms of the conditional use permit requirements of this subchapter or the use of fraud or misrepresentation in gaining a conditional use permit shall be cause for the immediate revocation of the permit.
(G) Procedures for home occupation permits. The operation of small individually owned business, in residential districts, is allowable under the following conditions.
(1) Application requirements.
(a) Legal description of the property and street address;
(b) Proof of ownership, or when the applicant is not the owner of the property, proof of legal right to apply for the permit;
(c) A site development plan consisting of a scaled drawing or map of the property showing the location of existing and proposed streets, driveways, parking and loading sites, pedestrian walks, structures, drainage improvements, landscaped areas, utility easements and setbacks;
(d) An evaluation of the existing infrastructures' capacities to serve the use's needs for potable water, liquid waste disposal and solid waste disposal; and
(e) The appropriate application fee.
(2) Evaluation criteria. A complete home occupations permit application must be submitted to Zoning Committee stipulating the following conditions, which shall be used as criteria for approval or denial.
(a) No exterior storage of stock in trade or materials used in the conduct of the home occupation shall be permitted.
(b) There shall be no external evidence of the business activity such as noise dust, odors, fumes, electrical interference or other nuisances emitted from the home.
(c) Only 1 non-residential employee is allowable.
(d) No sale of goods or services which shall affect the residential nature of the neighborhood shall be allowed.
(e) One non-illuminated sign not exceeding 2 square feet in area mounted flush to a building is permitted.
(f) The business shall generate no vehicular traffic or parking around the residence in addition to that normally associated with the use of the residence as a dwelling.
(g) Non-transferability. Prior to moving a home occupation, the owner or agent of the business must apply for and receive a new permit for the proposed new location.
(h) The business is not a cannabis establishment, cannabis consumption area, or cannabis courier.
(H) Procedures for temporary use permits.
(1) Application requirements.
(a) Legal description of the property and street address;
(b) Proof of ownership, or when the applicant is not the owner of the property, proof of legal right to apply for the permit;
(c) A site development plan consisting of a scaled drawing or map of the property showing the location of existing and proposed streets, driveways, parking and loading sites, pedestrian walks, structures, drainage improvements, landscaped areas, utility easements and setbacks;
(d) An evaluation of the existing infrastructures' capacities to serve the use's needs for potable water, liquid waste disposal and solid waste disposal; and
(e) The appropriate application fee.
(2) Approval. A temporary use permit may be approved for a period up to but not to exceed 14-consecutive days.
(3) Land. Additional temporary use permits may not be issued for uses occurring on the same parcel of land within 30 days of the conclusion of any temporary use permit.
(4) Hours. Hours of operation of temporary use permits shall be established by the Zoning Commission to promote the public's health, safety and welfare.
(5) Agreement. The applicant must execute an indemnification and hold harmless agreement approved as to form by the attorney for the city and sufficient to protect the city from claims arising from the conduct of the event.
(6) Exemptions from fee. Private vehicles for sale on the vehicle owner's private property are exempt from this subchapter. Individuals who offer for sale their own private vehicle e.g. cars, boats, recreational vehicles, truck on commercial property are exempt from fee and appearance before Planning and Zoning providing:
(a) Proof of ownership is submitted to the city;
(b) Written permission of owner of commercial land on which vehicle is to be offered for sale is submitted to the city;
(c) City records show an active license or registration for a business at that address/location;
(d) No more than 1 vehicle shall be offered for sale at a time at any 1 location other than long term lease, storage location; and
(e) A City of Elephant Butte Permit must be visible on or in the vehicle.
(I) Procedures for variances request.
(1) Application requirements.
(a) Legal description of the property and street address;
(b) Proof of ownership or when the applicant is not the owner of property, proof of legal right to apply for the permit; and
(c) The appropriate application fee.
(2) Required finding. Before approving a variance the Zoning Commission must make the following findings:
(a) Approval of the variance request will not allow a use which is not permitted by right, by conditional use permit, or by temporary use permit;
(b) Granting of the variance will not constitute a grant of special privilege inconsistent with the limitations on other properties in the same land use district and in the immediate vicinity of the variance requests;
(c) Granting of the variance will not be detrimental to the public health, safety or welfare, or be materially injurious to properties or improvements in the immediate vicinity;
(d) By granting the variance, the spirit of this subchapter will be observed, public safety and welfare secured, and substantial justice done; and
(e) The variance is warranted for 1 or more of the following reasons:
1. Interpretation. Strict or literal interpretation and enforcement of the specific performance standard or regulation would result in extreme and unnecessary physical hardship inconsistent with the purposes of this code;
2. Circumstanc es. Exceptional or extraordinary circumstances or conditions resulting from size, shape, or from topographic or physical conditions that do not apply generally to other properties in the same land use district in the city;
3. Cost. Cost and inconvenience to the applicant of strict or literal compliance with the regulation shall not be reason for granting a variance;
4. Duration of a variance. A variance may be issued for an indefinite duration or for a specified time; and
5. Voting on variance requests. The votes of a majority of the members of the Zoning Commission are required for approval or denial of variance request.
(J) Procedures for zone changes. An application must be submitted to the Zoning Commission as follows:
(1) Application requirements.
(a) Legal description of the property and street address;
(b) Proof of ownership, or when the applicant is not the owner of the property, proof of legal right to apply for the permit;
(c) A site and development plan consisting of a scaled drawing or map of the parking showing the location of existing and proposed streets, driveways, parking and loading sites, pedestrian walks, structures, drainage improvements, landscaped areas, utility easements and setbacks;
(d) An evaluation of the existing infrastructures' capacities to serve the user's needs for potable water, liquid waste disposal and solid waste disposal; and
(e) The appropriate application fee.
(2) Evaluation. The application shall be evaluated for a zone change based on the impact of the proposed use on surrounding properties and property owners.
(3) See division (J) hereof for hearing requirements.
(4) Voting on zone change requests.
(a) An affirmative vote of a majority of the members of the Zoning Commission is required for the Commission to recommend approval of a zone change application to the City Council.
(b) An affirmative vote of a majority of the members of the City Council is required for the approval of a zone change application.
(K) Public hearing and notice requirements.
(1) A public hearing is required for all requests for zone changes, conditional/special use, conditional use permits, variances, and temporary use permits.
(2) Notice of all public hearings held by the Zoning Commission or governing body of the city to review or act on such a request shall be posted in the same locations as designated in the current Open Meetings Act Resolution.
(3) Notice of the proposed hearing date, time, and location shall be posted on the subject lot or lots at least 15 days before the hearing within 6 feet of the front lot line and in plain view from the road.
(4) Notice of zoning changes which are proposed for an area of 1 block or less, shall be sent by certified mail to all property owners who own property within 100 feet of the property to be affected by the proposed action, as shown by the records of the Sierra County Clerk.
(5) For a proposed zoning change of an area of more than 1 block, notice shall be mailed by first class mail to the owners, as shown by records of the Sierra County Clerk, of lots of land within the area proposed to be changed and within 100 feet, excluding public right-of-way, of the area proposed to be changed.
(6) The hearing before the City Council will be a whole record review. It will review every document that was presented to Planning and Zoning and review all the testimony presented to Planning and Zoning. Both the applicant and any opponent have the right to address the governing body. The Mayor may limit the amount of time each person may speak to no longer than 10 minutes.
(Ord. 87, passed 11-2-2005; Am. Ord. 140, passed 9-18-2013; Am. Ord. 157, passed 8-5-2015; Am. Ord. 184, passed 6-5-2019; Am. Ord. 194, passed 12-16-2020; Am. Ord. 183, passed 8-18-2021; Am. Ord. 198, passed 8-18-2021; Am. Ord. 211, passed 6-21-2023; Am. Ord. 212, passed 7-19-2023)