CITY of ALBUQUERQUE
TWENTY SEVENTH COUNCIL
COUNCIL BILL NO. M-26-2 ENACTMENT NO. _______________
SPONSORED BY: Dan Lewis
MEMORIAL
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Urging The State Legislature To Authorize Municipalities, At Their Option, To Direct Certain Zoning Appeals For District Court Review (Lewis)
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URGING THE STATE LEGISLATURE TO AUTHORIZE MUNICIPALITIES, AT THEIR OPTION, TO DIRECT CERTAIN ZONING APPEALS FOR DISTRICT COURT REVIEW.
WHEREAS, the New Mexico Constitution enshrines municipal home rule power, emphasizing that municipalities enjoy maximum local self-government and that a liberal construction should be given to the powers of municipalities; and
WHEREAS, the New Mexico Constitution further states that a municipality may exercise all legislative powers and perform all functions not expressly denied by general law or charter; and
WHEREAS, New Mexico law enumerates the powers of municipalities, including the power to enter into contracts or leases, acquire and hold property, protect its property and its inhabitants, and preserve peace and order; and
WHEREAS, pursuant to NMSA 1978, Section 3-21-1, consistent with this constitutional grant of power and statutorily enumerated powers, New Mexico law expressly provides that a municipality is a zoning authority and may regulate and restrict zoning for the purpose of promoting health safety, morals, or general welfare; and
WHEREAS, NMSA 1978, Section 3-21-8(B) requires appeals of municipal zoning decisions to be heard first by the local zoning authority before any subsequent appeal may be taken to the district court; and
WHEREAS, NMSA 1978, Section 3-21-8(B) requires zoning appeals in every municipality to be heard by the local governing body, regardless of whether that step serves local needs; and
WHEREAS, an efficient and predictable land use process supports housing production, economic development, and responsible growth; and
WHEREAS, home rule municipalities should be able to decide which of their own appeal procedures best serve their residents, applicants, and neighborhoods; and
WHEREAS, the authority requested in this Memorial is optional, and a municipality that takes no action would continue to hear all appeals as it does today; and
WHEREAS, because zoning appeal standards are established by state statute, the State Legislature is the only body that can make the changes to state statute by subsequent legislation.
BE IT MEMORIALIZED BY THE COUNCIL, THE GOVERNING BODY OF THE CITY OF ALBUQUERQUE:
SECTION 1. The City Council urges the State Legislature to propose and enact revisions to NMSA 1978, Section 3-21-8 to achieve the purposes and justifications stated in this Memorial.
SECTION 2. To affect the purposes of this Memorial, the Albuquerque City Council respectfully proposes that the State Legislature revise NMSA 1978, Section 3-21-8 as follows:
3-21-8. Appeals to zoning authority; grounds; stay of proceedings.
A. The zoning authority shall provide by resolution the procedure to be followed in considering appeals allowed by this section. [A zoning authority may, by ordinance, designate, in advance and by class or kind of application, appeals allowed by this section to be appealed directly pursuant to NMSA 1978, Section 3-21-9 and Section 39-3-1.1. A designation applies only to applications accepted as complete after the ordinance takes effect. A municipality that does not adopt such an ordinance shall hear appeals pursuant to the provisions of this section.]
B. Any aggrieved person or any officer, department, board or bureau of the zoning authority affected by a decision of an administrative officer, commission or committee in the enforcement of Sections 3-21-1 through 3-21-14 NMSA 1978 or ordinance, resolution, rule or regulation adopted pursuant to these sections may appeal to the zoning authority[, provided that such appeal is not, by ordinance, designated for direct appeal by the zoning authority pursuant to subsection A, above.] An appeal shall stay all proceedings in furtherance of the action appealed unless the officer, commission or committee from whom the appeal is taken certifies that by reason of facts stated in the certificate, a stay would cause imminent peril of life or property. Upon certification, the proceedings shall not be stayed except by order of District Court after notice to the official, commission or committee from whom the appeal is taken and on due cause shown.
C. When an appeal alleges that there is error in any order, requirement, decision or determination by an administrative official, commission or committee in the enforcement of Sections 3-21-1 through 3-21-14 NMSA 1978 or any ordinance, resolution, rule or regulation adopted pursuant to these sections, the zoning authority by a majority vote of all its members may:
(1) authorize, in appropriate cases and subject to appropriate conditions and safeguards, variances or special exceptions from the terms of the zoning ordinance or resolution:
(a) that are not contrary to the public interest;
(b) where, owing to special conditions, a literal enforcement of the
zoning ordinance will result in unnecessary hardship;
(c) so that the spirit of the zoning ordinance is observed and substantial justice done; and
(d) so that the goals and policies of the comprehensive plan are implemented; or
(2) in conformity with Sections 3-21-1 through 3-21-14 NMSA 1978:
(a) reverse any order, requirement, decision or determination of an administrative official, commission or committee;
(b) decide in favor of the appellant; or
(c) make any change in any order, requirement, decision or determination of an administrative official, commission or committee.
SECTION 3. The City Clerk is directed to transmit copies of the Memorial to the City of Albuquerque State Legislative Delegation, the New Mexico Legislature, the Governor of New Mexico, the New Mexico Municipal League, and other appropriate state agencies.