45th legislature - STATE OF NEW MEXICO - second session, 2002

RELATING TO MUNICIPALITIES; PERMITTING A LAND-USE HEARING OFFICER TO CONDUCT PUBLIC HEARINGS ON ZONING CHANGES AND TO HEAR AND DECIDE APPEALS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 3-21-6 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-20-4, as amended) is amended to read:

"3-21-6. ZONING--MODE OF DETERMINING REGULATIONS, RESTRICTIONS AND BOUNDARIES OF DISTRICT--PUBLIC HEARING REQUIRED--NOTICE.--

A. The zoning authority within its jurisdiction shall provide by ordinance for the manner in which zoning regulations, restrictions and the boundaries of districts are:

(1) determined, established and enforced; and

(2) amended, supplemented or repealed.

B. No zoning regulation, restriction or boundary shall become effective, amended, supplemented or repealed until after a public hearing at which all parties in interest and citizens shall have an opportunity to be heard. Notice of the time and place of the public hearing shall be published, at least fifteen days prior to the date of the hearing, within its respective jurisdiction. Whenever a change in zoning is proposed for an area of one block or less, notice of the public hearing shall be mailed by certified mail, return receipt requested, to the owners, as shown by the records of the county treasurer, of lots [of] or land within the area proposed to be changed by a zoning regulation and within one hundred feet, excluding public [right-of-way] rights of way, of the area proposed to be changed by zoning regulation. Whenever a change in zoning is proposed for an area of more than one block, notice of the public hearing shall be mailed by first class mail to the owners, as shown by the records of the county treasurer, of lots or land within the area proposed to be changed by a zoning regulation and within one hundred feet, excluding public [right-of-way] rights of way, of the area proposed to be changed by zoning regulation. If the notice by first class mail to the owner is returned undelivered, the zoning authority shall attempt to discover the owner's most recent address and shall remit the notice by certified mail, return receipt requested, to that address.

C. If the owners of twenty percent or more of the area of the lots and land included in the area proposed to be changed by a zoning regulation or within one hundred feet, excluding public [right-of-way] rights of way, of the area proposed to be changed by a zoning regulation protest in writing the proposed change in the zoning regulation, the proposed change in zoning shall not become effective unless the change is approved by a majority vote of all the members of the governing body of the municipality or by a two-thirds vote of all the members of the board of county commissioners.

D. The zoning authority may designate a land-use hearing officer to hold the public hearing and approve the proposed change in a zoning regulation for all protests except those set forth in Subsection C of this section."

Section 2. Section 3-21-8 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-20-6, as amended) is amended to read:

"3-21-8. APPEALS TO ZONING AUTHORITY--LAND-USE HEARING OFFICER--GROUNDS--STAY OF PROCEEDINGS.--

A. The zoning authority shall provide by [resolution] ordinance the procedure to be followed in considering appeals allowed by this section. The zoning authority may, by a majority vote of all its members, delegate to a designated land-use hearing officer the authority to hear and decide the appeals allowed by 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. 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, or through its designated land-use hearing officer, may:

(1) authorize, in appropriate cases and subject to appropriate conditions and safeguards, variances from the terms of the zoning ordinance or resolution:

(a) which 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; and

(c) so that the spirit of the zoning ordinance is observed and substantial justice done; 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."