INTER-OFFICE MEMORANDUM August 12, 2015
TO: Rey Garduño, President, City Council
FROM: Suzanne Lubar, Planning Director
Subject:
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(Project#1008203/15EPC-40020) Emilio Chavez and Matthew Archuleta Appeal the Environmental Planning Commission’s (EPC’s) Approval of a Zone Map Amendment (zone change), for Tracts A2, A3, A4, Unser and Sage Market Place, located on Unser Street between Sage Road SW and Arenal Road SW
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AC-15-5 Project# 1008203/15EPC-40020 Emilio Chavez and Matthew Archuleta appeals the Environmental Planning Commission’s (EPC’s) APPROVAL of a Zone Map Amendment (zone change), for Tracts A2, A3, A4, Unser and Sage Market Place, located on Unser Street between Sage Road SW and Arenal Road SW. Staff Planner: Maggie Gould
REQUEST
This appeal seeks to reverse the Environmental Planning Commission’s (EPC’s) approval of a zone map amendment (zone change) for an approximately 3.5 acre vacant site, Tracts A2, A3, A4, Unser and Sage Market Place, located on the corner of Sage Road and Unser Boulevard SW ( the “Subject Site”). The appeal is submitted by a represenative of the Stinson Tower Neighborhood Association and a representive of the Westgate Heights Neighborhood Association.
BACKGROUND
The EPC approved a zone change from C-1 (Neighborhood Commercial) to SU-1 for C-2 (Community Commercial), Uses excluding the sale of distilled spirits, as defined in the New Mexico Liquor Control Act, in any package that contains less than 450 milliliters and fortified wines with a volume of alcohol of more than 13.5 %. The applicant originally requested the SU-1 for C-2 uses zone. This zone would have allowed both the permissive and conditional uses of the C-2 zone without restrictions.
The EPC application was submitted on May 28th, 2015. A facilitated meeting was offered to the affected Neighborhoods: Stinson Tower, Westgate Heights, South Valley Coalition of Neighborhoods, and South West Alliance of Neighbors (SWAN) and the Westside Coalition of Neighborhoods. The Neighborhoods declined a meeting. Staff received an e-mail dated July 1, 2015, from Mr. Emilio Chavez, one of the appellants, stating that he was concerned about the project, but not opposed. On July 8th, one day before the EPC hearing, staff received e-mails from Emilio Chavez and Matthew Archuleta expressing opposition to the project. The EPC’s Rules of Conduct requires written testimony that is submitted 48 hours or less before the hearing to be presented at the hearing and not forwarded to the EPC.
THE ENVIRONMENTAL PLANNING COMMISSION DECISION
This EPC agenda item was considered a quasi-judicial matter. Subject to twelve findings and one condition, the EPC approved the zone change at the July 9, 2015 public hearing.
The EPC heard the concerns of the neighborhood representatives who were present at the hearing and had a discussion with the applicant and the neighbors about excluding certain types of alcohol sales from the proposed zone. After discussion with the applicant, staff and neighbors, the EPC voted to approve an amended version of the request removing the sale of distilled spirits, as defined in the New Mexico Liquor Control Act, in any package that contains less than 450 milliliters and fortified wines with a volume of alcohol of more than 13.5.
The EPC found that the zone change was adequately justified pursuant to the policies and criteria of
R270-1980 and that the request furthered a preponderance of applicable goals and policies in the Comprehensive Plan, the West Side Strategic Plan, Southwest Strategic Action Plan and the Tower Unser Sector Plan. There was no significant conflict with an adopted element of the aforementioned plans (Section 1C of R-270-1980) and they found no significant conflict with any other subsection of R270-1980.
ZONING
The subject site is zoned C-1 ( Neighborhood Commercial, 14-16-2-16). C-1 zoning is designed to provide sites for office, service and institutional use and limited commercial uses to service the daily needs of residential areas. The permissive uses include churches, office, restaurant with beer and wine service, multi-family housing under certain circumstances, general retail sales, personal services and gas stations with specific buffering requirements. Drive-in restaurants are allowed as a conditional use.
The approved zone SU-1 for C-2 (Community Commercial), Uses excluding the sale of distilled spirits, as defined in the New Mexico Liquor Control Act, in any package that contains less than 450 milliliters and fortified wines with a volume of alcohol of more than 13.5 %, will allow a wider variety of uses on the subject site including a business with a drive thru service window, sales of alcohol for off premise consumption, restaurant with full service liquor, commercial parking lots and dry cleaning. The conditional uses, which would be allowed permissively in the requested zone, include kennels, schools and outdoor storage
GROUNDS & REASON FOR APPEAL
Pursuant to Zoning Code §14-16-4-4(B) (4), the Appellant must articulate the reason(s) for the appeal and show that the EPC erred:
a. In applying adopted City plans, policies, and ordinances in arriving at the decision.
b. In the appealed action or decision, including its stated facts.
c. In acting arbitrarily or capriciously or manifestly abusive of discretion.
The Appellants, Emilio Chavez on behalf of the Stinson Tower Neighborhood Association and Matthew Archuleta on behalf of the Westgate Heights Neighbohood Association, raise two issues: 1) the request is not consistent with the health, safety, morals and general welfare of the city as stated in R-270-1980 ;and 2) Community conditions have not changed.
1) Consistentcy with the health, safety, morals and general welfare of the City
The Appellants claim that the zone change is not consistent with the health , safety, morals and general welfare of the City as stated in section A of R-270-1980 because the proposed zone will allow package liquor sales. Additionaly, the Appellants state that the proposed zoning is in conflict with policy II.B.5d, that the location, intensity and design of new development shall respect neighborhood values.
The Appellants state that it has been the practice of the neighbohoods to oppose package liquor sales when other businesses have requested that use, and that allowing the use at the Subject Site is not consistent with the neighborhood values because of concerns about DUI and DWI.
The neighborhoods declined a facilitated meeting where the opposition to the new zone could have been discussed. When the EPC became aware of the neighborhood concerns at the hearing they chose to discuss the issue with the applicant and the Neighborhood Association representatives and then approved an amended zone that limited the types of package liquor that are sometimes considered problematic. The EPC also required that the Site Development Plans for Building Permit for the three subject tracts return to the EPC for review. This allows for additional neighborhood input on the design and layout of proposed developments.
2) Changed Conditions
The Appellants state that the applicant received approval for Site Development Plan for Subdivision (SPS)in 2010 and that community conditions have not changed since that time. The SPS established design standards and access for the site and did not address new uses on the site.The staff report discusses changed conditions since the imposition of zoning in 1986, rather than the approval of the SPS in 2010. Changed conditions is one of the three “either/or” criteria of R-270-1980 that an applicant may cite or demonstrate to justify a change of zone. Elucidating changed conditions is not required.
The record shows that the EPC had extensive discussion about, and fully considered, all of the relevant goals and policies pertaining to the requested zone change, and whether or not the request was justified pursuant to the criteria set forth in R-270-1980. Additionally, the EPC approved a more restrictive zone to limit the types of alcohol sold and required that the development on the subject sites be reviewed through the EPC process.
The EPC’s decision is within its authority and is supported by the record and the findings contained in the Notice of Decision. The Planning Department supports the EPC’s decision and recommends denial of the appeal.
Kym Dicome, Manager
Current Planning Section
Planning Department