§ 24. Administration.

A.

Zoning Administrator:

1.

Creation of the Office. There is created hereby the office of Zoning Administrator. The Zoning Administrator shall be hired by the County Manager in accordance with the provisions of the County Personnel Ordinance.

2.

Powers and Duties. The Zoning Administrator and his designees shall enforce this ordinance, and in addition thereto and in furtherance of said authority, they shall:

a.

Issue all zoning certificates as required, and make and maintain records thereof.

b.

Issue all certificates of occupancy as required, and make and maintain records thereof.

c.

Conduct inspection of buildings, structures, and the use of land to determine compliance with these regulations. This provision does not grant right of entry without due process.

d.

Maintain permanent and correct records of this ordinance, including but not limited to all maps, amendments, and conditional use permits, variances, and appeals.

e.

Provide and maintain a public information bureau relative to all matters arising out of this ordinance.

f.

Issue certificates for non-conforming uses existing at the effective date of this ordinance.

g.

In the event any building or structure is erected, constructed, reconstructed, altered, repaired, converted or maintained, or any building, structure or land is used in violation of this ordinance, in addition to other remedies, may initiate any appropriate action or proceeding to prevent such unlawful action, to restrain, correct or abate such violation, to prevent the occupation of such building, structure, or land, or to prevent any illegal act, conduct, business, or use in or about such premises.

h.

Investigation of Applications:

(1)

Investigate all applications for variances from the height, area, parking or density regulations of this ordinance, and to grant such applications to the extent necessary to permit the owner reasonable use of his land in those specified instances where there are peculiar, exceptional, and unusual circumstances in connection with a specific parcel of land, which circumstances are not generally found within the locality or neighborhood concerned.

(2)

Investigate all applications for an extension of the time limitations authorized by the Nonconforming Use Regulations Section of this ordinance or for an expansion of up to 25 percent of the original floor area for residential uses in residential zones, and to grant such applications if the use does not seriously conflict with the character of the surrounding area and in case of expansion of the use the site is adequate in size and shape to accommodate such expansion and the expansion does not increase the number of dwelling units on the lot or in any structure.

i.

Investigate all applications for conditional use permits authorized in this ordinance, and grant such applications if he finds:

(1)

That the site for the proposed use is adequate in size and shape to accommodate such use, and all yards, open spaces, walls and fences, parking, loading, landscaping, and other features required by this ordinance to adjust such use to the land use pattern in the neighborhood.

(2)

That the site for the proposed use can be developed in such manner that undue traffic congestion or hazards will not be created.

(3)

That the proposed use will have no adverse effect on the neighborhood or seriously conflict with the character of the area.

(4)

That any conditions are deemed necessary to protect the public health, safety, and general welfare. Such conditions may include requirements relative to:

(a)

Open space and buffers.

(b)

Walls and fences.

(c)

Surfacing of parking areas.

(d)

Location of points of vehicular egress and ingress.

(e)

Signs.

(f)

Landscaping and maintenance thereof.

(g)

Noise, vibration, odor, and health hazards.

(h)

Such other conditions as will make possible the development of the county in an orderly, efficient manner, and in conformity with the intended purpose of this ordinance.

j.

Authorize amendments to approved special use development plans with the concurrence of the Planning Department, provided:

(1)

That any such amendment shall result in an equal or less intense use of land than that first approved by the Board of County Commissioners; and

(2)

That no minimum requirement or additional requirement imposed on any development plan by the Board of County Commissioners would be modified.

(3)

Applicants requesting an amendment to an existing Special Use Permit development plan shall adhere to the process outlined in the following sections of this ordinance.

3.

Application Procedures and Filing Fees:

a.

Applications. An application for a variance, conditional use permit or administrative amendment to a special use development plan shall be filed with the Zoning Administrator on a form and accompanied by such data and information as he may prescribe.

b.

Procedures. Wrong or incomplete information may cause a delay in the hearing process. It is suggested that the applicant have an informal consultation with the Zoning Division before filing an application in order to be informed of any requirements or policies relevant to the request. An application shall include the following information:

1.

The name, address, and telephone number of the applicant and/or agent.

2.

The legal description and uniform property code number of the property.

3.

A plot plan delineating the boundaries of the property and all existing and proposed improvements.

4.

A written statement which justifies the request.

5.

Any additional information deemed necessary by the Zoning Administrator for reviewing the request.

6.

Certification from the County Environmental Health Department, Public Works Department, Floodplain Administrator, Albuquerque Metropolitan Arroyo Flood Control Authority, relative to their respective ordinances.

c.

Filing Fees:

(1)

A fee of $75.00 shall be paid at the time an application for a variance, a conditional use permit or an administrative amendment to a special use development plan is filed except for applications for conditional use involving more than one dwelling unit or mobile home per lot.

(2)

A fee of $100.00 shall be paid at the time an application for a conditional use permit is filed for one mobile home in addition to an existing single-family dwelling or mobile home on one lot.

d.

When an application is withdrawn after scheduling and advertising for public hearing by the Zoning Administrator, the filing fee shall not be refunded to the applicant. When an application is withdrawn before such advertisement all but $25.00 of the fee shall be refunded.

4.

Hearing. Public hearing on all applications for a variance, conditional use permit or administrative amendment to a special use development plan shall be held by the Zoning Administrator in accordance with the procedures herein described:

1.

The Zoning Administrator shall fix a regular time and place for hearings.

2.

Public notice of the hearing at which the application is to be considered must be given by at least one publication in a daily newspaper of general circulation in Bernalillo County at least 15 days prior to the hearing.

3.

Written notice of the hearing shall be mailed not less than five days before the date of the hearing to the owners of all property within 200 feet of the exterior boundaries, excluding public rights-of-way of the property which is the subject of the application. For this purpose the last known name and address of such owners shown in the records of the Bernalillo County Assessor shall be used. The above described notification radius shall be increased to 300 feet for the application for Conditional Use that could result in more than one dwelling unit or mobile home per lot. When any of the property immediately beyond the radius herein is under the same ownership as the property that is the subject of the application, the owner of the property next adjacent, disregarding public ways, also shall be notified. The applicant must post and maintain one or more signs as provided by the office of the Zoning Administrator at least 15 days before and after the date of the hearing by the Zoning Administrator. The applicant is responsible for removal of the sign(s) 16 days after the hearing. Failure to properly post and maintain the sign(s) is grounds for deferral or denial of the request. The office of the Zoning Administrator shall issue Sign Posting Instructions. The office of the Zoning Administrator must keep minutes of its proceeding and the minutes must be public records.

5.

Determination by the Zoning Administrator. Upon making a ruling or determination relative to an application for a variance, conditional use permit, administrative amendment to a special use development plan or any other matter under his jurisdiction, the Zoning Administrator shall forthwith furnish a copy thereof to the applicant and other parties who had signed up to receive such notice at the public hearing on the matter. Such determination shall be final except that an appeal may be taken as provided in the next subsection. After an application of conditional use or variance is advertised by the Zoning Administrator another application affecting the same property shall not be filed within a period of 12 months from the date of advertisement.

6.

Appeals. An appeal of a determination of the Zoning Administrator may be made in the manner prescribed in the following subsection. No variation or conditional use permit shall become effective until after an elapsed period of 15 days from the date the written determination is made, during which time an appeal may be filed with the Board of Adjustment by any person aggrieved, or by any office, board, department or bureau of the County. Permissive uses listed within each zoning category may not be appealed.

7.

Exceptions. Notwithstanding any provision of the Amendments Section of this ordinance. Subsection (3), (4), (5) and (6) of this ordinance to the contrary, the Bernalillo County Zoning Administrator may within one year from the date of the adoption of this ordinance grant a Conditional Use Permit for those uses for which plans are on file and have been approved by the Bernalillo County Zoning Administrator prior to April 17, 1973, on whatever terms or conditions he deems necessary without requiring an application, and unless the permit specifies to the contrary, the Conditional Use so granted will continue for the life of the use.

B.

Board of Adjustment:

1.

A Board of Adjustment is hereby created. Such Board shall consist of seven members, all of whom shall be residents of Bernalillo County. They shall be appointed by the Board of County Commissioners. Appointments shall be made for a term of three years. Vacancies shall be filled by appointment for the unexpired term only. Members of the board shall serve without compensation. A member of the Board of Adjustment may be removed by the affirmative action of three members of the Board of County Commissioners after being given a written statement of the charges against him, and a hearing, which shall be a public hearing if he so desires. Annually in January or more frequently at the pleasure of the Board of Adjustment, the Board of Adjustment shall select, by majority vote from its members, a chairman, a vice-chairman and any other officers which seem appropriate to the Board of Adjustment. Should a vacancy in these positions occur between regular elections, a special election shall be held to fill the remainder of the term.

2.

The Board of Adjustment shall fix a reasonable and regular time and place for hearings, and it shall adopt such rules as may be necessary and proper to govern its proceedings. Such rules shall be in conformance with requirements of this ordinance. All meetings shall be open to the public. The Board of Adjustment shall keep minutes of its proceedings, including a record of the vote of each member on each action, and such minutes shall be public records.

3.

Powers and Duties. The Board of Adjustment shall have the following powers:

a.

To hear and determine appeals where it is alleged there is error or abuse of discretion in any order, requirement, decision or determination made by the Zoning Administrator in the enforcement of the provisions of the ordinance.

b.

To hear and determine appeals from the rulings, decisions, and determinations of the Zoning Administrator granting or denying applications for variation from any requirements of this ordinance or granting or denying applications for conditional use permits authorized by this ordinance.

4.

Appeals:

a.

An appeal shall be made in writing and shall be filed in duplicate in the office of the Zoning Administrator on forms provided by the Board of Adjustment. Such appeal must set forth specifically wherein it is claimed there was an error or an abuse of discretion by this action, or where the decision is not supported by evidence in the matter. A filing fee of $75.00 shall accompany each appeal on lots of one acre or less. A fee of $100.00 on all other appeals. When an appeal is withdrawn, the filing fee shall not be refunded.

b.

Appeal of any denial or approval of an application by the Zoning Administrator must be submitted in writing to the Board of Adjustment by noon of the 15th day after the date of determination by the Zoning Administrator. The day of determination by the Zoning Administrator shall not be included in the 15-day period for filing an appeal, and if the 15th day falls on a Saturday, Sunday, or holiday, the next working day shall be considered as the deadline for filing the appeal. A building permit or Certificate of Occupancy shall not be issued until any appeal is decided, or the time for filing such appeal has expired.

c.

Within ten days after the filing of the appeal, the Zoning Administrator shall transmit to the Board of Adjustment all papers involved in the proceedings, a copy of his findings and determination relative thereto, and one copy of the appeal. In addition, he may make and transmit to the Board of Adjustment such supplementary report as he may deem necessary to present clearly the facts and circumstances of the case.

d.

Upon receipt of the record, the Board of Adjustment shall set the matter for hearing and give notice by mail of the time, place, and purpose thereof to the appellant, to the Zoning Administrator, and to any interested party who has requested in writing to be so notified. No other notice thereof need be given except in those cases hereinafter mentioned. In cases where the appeal is from a determination granting or denying a variance or a conditional use, the Board of Adjustment shall not reverse or modify, in whole or in part, any determination of the Zoning Administrator unless notice of the time, place, and purpose of the hearing has been given in the same manner as prescribed for the holding of hearings before the Zoning Administrator.

e.

Upon hearing of such appeals, said Board of Adjustment may affirm, change, or modify the ruling, decision or determination appealed from, or, in lieu thereof, make such other or additional determination as it shall deem proper in the premises.

f.

The decision of the Board of Adjustment upon the appeal shall be in writing, concurred in by a majority of the members present of the Board of Adjustment, which shall forthwith transmit a copy thereof to the appellant and to the Zoning Administrator. Any such decision may be appealed to the Board of County Commissioners as prescribed in the following subsections:

(1)

An appeal of a determination of the Board of Adjustment must be submitted in writing to the Board of County Commissioners by noon of the 15th day from the date of the written determination by the Board of Adjustment. The day of written determination by the Board of Adjustment shall not be included in the 15 day period of filing an appeal, and if the fifteenth day falls on a Saturday, Sunday, or holiday, the next working day shall be considered as the deadline for filing the appeal. A building permit or Certificate of Occupancy and Compliance shall not be issued until any appeal is decided, or the time of filing such appeal has expired.

a.

Written notice of an appeal from the Board of Adjustment to the Bernalillo County Commission shall be filed with the Office of the Zoning Administrator. A filing fee of $100.00 shall accompany the appeal.

b.

The Public must be notified of the hearing at which the appeal is to be considered. The County must publish this notice at least one time, and at least 15 days before the hearing, in a daily newspaper of general circulation in Bernalillo County.

c.

When an appeal is withdrawn by the appellant after scheduling and advertising for public hearing by the Board of County Commissioners, the filing fee shall not be refunded to the appellant.

d.

Staff shall submit the appeal to the Board of County Commissioners within 3 months after the appeal is filed.

e.

Any such decision by the Board of County Commissioners shall, in all instances, be the final administrative decision and shall be subject to judicial review as may be provided by law.

(2)

Upon hearing of the appeal, said Board of County Commissioners may affirm, deny, change, or modify the ruling, decision or determination of the Board of Adjustment, or in lieu thereof, make such other or additional determination as it shall deem proper.

a.

When the Board of Adjustment has voted on an appeal regarding a request for a variance or conditional use, and this action is appealed to the Board of County Commissioners, an extraordinary majority vote of the members of the Board of County Commissioners is required to approve a variance or conditional use where a written protest of the action is signed by each of the equitable owners of record of land comprising at least:

20 percent of the land within 100 feet, excluding right-of-way, of the land proposed for the variance or conditional use.

b.

When an extraordinary majority vote is invoked, the following composition of the Bernalillo Board of County Commission shall be required:

1.

Four votes are required when five commissioners are present;

2.

Three votes are required when four commissioners are present;

3.

Three votes are required when three commissioners are present.

c.

When considering a variance or a conditional use request, where the appellant does not present clear and convincing evidence of having met the criteria listed in [subsection] a. above, a majority of the quorum of the Board of County Commissioners is required to affirm, reverse or modify a determination of the Board of Adjustment.

d.

Protests from neighboring property owners seeking to invoke the extraordinary majority requirement shall be submitted on forms prescribed by the County Manager or his designee at least seven days prior to the scheduled Board of County Commissioners' hearing on the appeal.

[e.

Reserved.]

[f.

Reserved.]

g.

No determination of the Zoning Administrator or the Board of Adjustment permitting the alteration or erection of a building under a variance or conditional use permit shall be valid for a period longer than six months, unless a building permit for such alteration or erection is obtained within such period, and such alteration or erection is started and proceeds to completion in accordance with the terms of such permit.

h.

No determination of the Zoning Administrator or Board of Adjustment permitting a use of a building or premises under a variance or conditional use permit shall be valid for a period longer than six months, unless such use is established within such period, provided, however, that where such use is dependent on the re-erection or alteration of a building, such determination shall continue in force and effect if a building permit for said erection or alteration is started and proceeds to completion in accordance with the terms of such permit.

C.

Zoning Certificates:

1.

Except as hereinafter provided, no permit pertaining to the use of land or buildings shall be issued by the Zoning Administrator unless the application of such permit has been examined by the office of the Zoning Administrator, and has affixed to it a certificate of the office of the Zoning Administrator indicating that the proposed building, structure or use complies with all the regulations of this ordinance. Where no other permit is required for the use of land, this zoning certificate shall be construed as the permit to so use the land. Any permit or certificate of occupancy issued in conflict with the provisions of this ordinance shall be null and void.

2.

Plot Plans. All applications for building permits shall be accompanied by a plot plan in duplicate showing, with dimensions, the lot lines, building or buildings, location of buildings on the lot, and such other information as may be necessary to provide for the enforcement of this ordinance including, if necessary, a boundary survey and the staking of the lot by a competent surveyor or engineer. The plot plans shall contain suitable notations indicating the proposed use of all land and buildings. A record of the original copy of such applications and plot plans shall be kept in the office of the Zoning Administrator, and a duplicate copy shall be kept at the building at all times during construction.

3.

Building or Use Permit:

a.

No vacant land shall be occupied or used, except for open land agricultural purposes as permissive in the A-1 and A-2 zones, until a Building or Use Permit shall have been issued by the office of the Zoning Administrator.

b.

No premises shall hereafter be used and no buildings hereafter erected or structurally altered shall be used, occupied, or changed in use until a Building or Use Permit shall have been issued by the Office of the Zoning Administrator stating that the building or premises complies with the provisions of this ordinance.

c.

No Use Permit will be required for any residential use of an existing building, a modular home or a mobile home.

d.

Building or Use Permit shall be applied for coincident with the applications for a zoning certificate and shall be issued within ten days after the erection or structural alterations of such buildings shall have been completed in conformity with the provisions of this ordinance.

e.

No permit for excavation for any building shall be issued before application has been made for a Building or Use Permit.

f.

The Zoning Administrator shall issue a certificate of occupancy for any building or premises existing at the effective date of this ordinance [May 17, 1973], certifying, after inspection, the extent and kind of use made of the building or premises and whether such use conforms to the provisions of this ordinance.

g.

Fees for building permits and certificates of occupancy. For each permit to erect, construct, reconstruct, alter or change the use of any building, structure or land within any portion of the unincorporated area of Bernalillo County, for which a permit is not required by the Bernalillo County Uniform Building Code, a fee shall be charged according to the following schedules:

(1)

Buildings:

(a)

Accessory building with a gross floor area of 250 square feet or less (See fee schedule).

(b)

The fee for alteration, remodeling, or additions to existing buildings shall be the same as the fee required for an initial permit for accessory buildings.

(c)

1.
Mobile homes having a gross floor area of 500 square feet or less (See fee schedule).

[1.

Reserved.]

2.

Mobile homes having a gross floor area of more than 500 square feet and not over 1,200 square feet (See fee schedule).

3.

For mobile homes with a gross floor area of more than 1,200 square feet an additional fee of $2.00 for each 500 square feet of floor area or fraction thereof in excess of 1,200 square feet.

(2)

Uses:

(a)

The fee for a certificate of occupancy for a new nonresidential use, or a change of nonresidential use of buildings or land, shall be (See fee schedule).

(b)

The fee for a certificate of nonconforming use of a building or land which lawfully existed on the effective date of those regulations with which it does not conform, shall be (See fee schedule).

(c)

The fee for a certificate of home-occupation, shall be (See fee schedule).

(3)

Structures Other Than Buildings:

(a)

Signs, on-premises or off-premises (See fee schedule):

1 to and including 39 square feet

Over 39 to and including 59 square feet

Over 59 to and including 79 square feet

Over 79 to and including 99 square feet

Over 99 to and including 119 square feet

Over 119 to and including 139 square feet

Over 139 to and including 159 square feet

Over 159 square feet

Off-premises signs and on-premises freestanding signs exceeding 32 square feet per sign face shall meet the requirements of the Bernalillo County Building Ordinance.

(b)

Walls. The fee for construction of a wall or fence shall be $10.00 or ten cents a linear foot whichever is greater but in no instance shall it exceed $25.00.

(4)

Penalty. An additional fee of $100.00 will be charged on any application which is the direct result of a violation of this ordinance.

(Ord. No. 220, 7-17-73; Ord. No. 225, 8-7-73; Ord. No. 305, 7-15-75; Ord. No. 364, 9-21-76; Ord. No. 78-25, 4-18-78; Ord. No. 78-50, 7-18-78; Ord. No. 80-32, 6-17-80; Ord. No. 81-25, 7-21-81; Ord. No. 81-39, 11-17-81; Ord. No. 87-21, 7-21-87; Ord. No. 92-18, 12-15-92; Ord. of 12-21-93; Ord. No. 97-16, 10-8-97; Ord. No. 00-1, § 1, 1-11-00; Ord. No. 04-1, § 1, 1-13-04; Ord. No. 2006-3, § 1, 2-14-06; Ord. No. 2008-4, § 1, 4-24-08; Ord. No. 2010-17, § 1, 8-24-10; Ord. No. 2016-32, 11-15-16)

Cross reference

Boards and commissions, § 2-431 et seq.