§ 154.062  APPEALS.
   (A)   Appeals to P&Z.
      (1)   (a)   The P&Z, on its own motion, may order review of any decision of the Department within 60 days of the decision.
         (b)   The P&Z may schedule a public hearing to hear the appeal pursuant to the Type B process, § 154.076.
      (2)   In hearing and deciding an appeal the P&Z may affirm, modify or reverse all or part of the action of the Department so long as the action is in conformity with the chapter.
   (B)   Appeals to Commission.
      (1)   Where it is alleged that there is error in any order, requirement, decision or determination made by the P&Z or the Department, an appeal therefrom may be made by an affected party to the Commission on a form prescribed by the Department. The written appeal shall be filed with the Department within 15 days of the decision on a proposed action and shall be accompanied by the appropriate filing fee.  The Commission, on its own motion, may order review of any decision of the Department or P&Z within 30 days of the decision.  Upon determination that the appeal request is complete and in order, a public hearing before the Commission shall be scheduled and the appeal heard pursuant to the Type C process, § 154.077, provided for in this chapter and pursuant to NMSA § 3-21-8 as the same may be amended from time to time.
      (2)   In hearing and deciding an appeal the Commission may affirm, modify or reverse all or part of the action of the Department so long as the action is in conformity with the chapter, or may provide any relief describe in NMSA § 3-21-8 as the same may be amended from time to time.
   (C)   Standing to appeal; content of appeal.
      (1)   A decision by the Department, P&Z or Commission to approve or deny an application or docket item request may be appealed provided the appellant has satisfied the following:
         (a)   Filed a written appeal, accompanied by the appropriate filing fee, with the Department within the time required by this chapter submitted in accordance with division (2) below of this section;
         (b)   Appeared before the P&Z, hearings officer or Commission orally or in writing; and
         (c)   Meets 1 of the following criteria:
            1.   Was entitled by this chapter to notice and hearing prior to decision appealed; or
            2.   Is aggrieved or has interests adversely affected by the decision.
      (2)   Any appeal filed shall be in writing, shall explain the basis of the appeal and shall include 1 or more of the following:
         (a)   A reference to the chapter provisions or plan policies providing the basis of the appeal;
         (b)   Reasons why the decision is factually or legally incorrect;
         (c)   A description of new information or additional facts which should have been considered in the decision; and
         (d)   A description of any mitigating factors which might be taken to make the decision acceptable.
   (D)   Review on record.  Unless otherwise provided by the P&Z or the Commission under division (E) below, the review of a decision of the P&Z or Department by the Commission shall be confined to the record of the proceedings, which shall include:
      (1)   All materials, pleading, memoranda, stipulations and motions submitted by any party to the proceeding and received or considered by the Department or the P&Z as evidence;
      (2)   All materials submitted by the Department with respect to the application;
      (3)   The minutes or tape of the public hearing of the P&Z;
      (4)   The findings and action of the Department, P&Z and the notice of review; and
      (5)   Argument confined to the record by the parties or their legal representatives at the time of review before the Commission.
   (E)   De novo review.
      (1)   The Commission or P&Z may, at its option, whether or not upon a motion of a party, hold a de novo hearing or admit additional testimony and other evidence with or without holding a de novo hearing, if it is satisfied that the testimony or other evidence could not have been presented when the matter appealed from was initially decided upon.
      (2)   In deciding this admission, the Commission shall consider:
         (a)   Prejudice to parties;
         (b)   Convenience of locating the evidence at the time of initial hearing;
         (c)   Surprise to opposing parties;
         (d)   When notice was given to other parties as to the attempt to admit; and
         (e)   The competency, relevancy and materiality of the proposed testimony and other evidence.
(Ord. 2004-05, passed 9-15-2004; Am. Ord. 05, passed 9-15-2004; Am. Ord. 09 passed 9-15-2004)