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

RELATING TO MUNICIPALITIES; PERMITTING A LAND USE HEARING OFFICER TO CONDUCT PUBLIC HEARINGS ON CERTAIN MATTERS REGARDING ZONING.

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

Section 1. A new section of the Municipal Code, Section 3-21-6.1 NMSA 1978, is enacted to read:

"3-21-6.1. [NEW MATERIAL] LAND USE HEARING OFFICERS.--

A. A zoning authority may designate a hearing officer to conduct hearings in zoning matters that are quasi-judicial or administrative in nature and are protests or disputes arising from the administration or enforcement of a zoning law, regulation, restriction or boundary. The land use hearing officer shall conduct the hearing in the manner required or permitted by law.

B. In a hearing conducted pursuant to Subsection A of this section, the land use hearing officer shall make a proposed decision on the matter and make findings of fact and conclusions of law.

C. The proposed decision, with the findings of fact and conclusions of law, shall be forwarded to the zoning authority for approval or disapproval. The zoning authority shall make its decision solely on the record of the hearing, the findings of fact and the conclusions of law and no further testimony of witnesses shall be taken or considered. The decision of the zoning authority shall be made by a majority vote of the members unless a greater majority is otherwise required by ordinance, charter or law.

D. An appeal of the decision of the zoning authority may be made to the district court for a hearing, as provided by law."

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--GROUNDS--STAY OF PROCEEDINGS.--

A. The zoning authority shall provide by resolution the procedure to be followed in considering appeals allowed by this section.

B. Unless a land use hearing officer has been designated pursuant to Section 3-21-6.1 NMSA 1978, 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 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."