BEFORE THE LUHO APPEAL OF THE ZONING BOARD OF APPEALS DECISION Appeal Nos.: 18BOA-2007 & 18BOA-2008 (Project 1011410: 17-ZHE: 80247 & 80249) THANK YOU MR. CHAVEZ FOR THE OPPORTUNITY TO ADDRESS YOU. • FIRST, THE TRANSCRIPT IS MISSING MOST OF OUR 15 MINUTE TESTIMONY BEFORE THE BOARD OF APPEALS. FOR PURPOSES OF YOUR REVIEW - IN TESTIFYING BEFORE THE BOA - WE OUR PRESENTATION DOCUMENT CLOSELY - WHICH ALSO INCLUDES OUR CHALLENGES TO THE ZHE'S FINDINGS. (Record Pg. 3A-8A) • FOR US THE CRUX OF THESE APPEALS IS WHETHER OR NOT THE BOA MET THE STANDARDS FOR REVIEW ON APPEAL - WHETHER THE CONDITIONS SET FORTH IN THE ZONING CODE: 14-16-4-2: (C) (2) HAVE ALL BEEN MET. • WE ALSO QUESTION THE STANDARD OF PROOF REQUIRED FOR GRANTING THESE VARIANCES - WHETHER THE APPLICANT HAS PROVEN BY SUBSTANTIAL EVIDENCE THAT HIS PROPERTY IS EXCEPTIONAL FROM ALL OTHERS AND; • WHETHER AN ADMINISTRATIVE AGENCY HAS ACTED IN AN ARBITRARY AND CAPRICIOUS MANNER RESULTING IN AN ABUSE OF DISCRETION REQUIRING REVIEW OF THE WHOLE RECORD TO ASCERTAIN WHETHER THERE HAS BEEN UNREASONED ACTION WITHOUT PROPER CONSIDERATION OR DISREGARD OF THE FACTS AND CIRCUMSTANCES. WE UNDERSTAND THAT AN AGENCY'S DECISION WILL NOT BE DISTURBED UNLESS IT IS FOUND TO BE ARBITRARY OR CAPRICIOUS OR AN ABUSE OF DISCRETION, NOT SUPPORTED BY SUBSTANTIAL EVIDENCE OR OTHERWISE NOT IN ACCORD WITH THE LAW AND; • HOW THE PUBLIC INTEREST AND SUBSTANTIAL JUSTICE ARE DETERMINED. BASIS FOR APPEAL: THE ZONING BOARD OF APPEALS (BOA) IS THE APPELLATE COMMITTEE RESPONSIBLE FOR HEARING APPEALS OF ZONING HEARING EXAMINER DECISIONS ON SPECIAL EXCEPTIONS TO THE ZONING ORDINANCE. THE BOARD MAY ONLY CONSIDER EVIDENCE IN THE RECORD OF HEARING OF THE ZONING HEARING EXAMINER. 14-16-4-4 APPEAL. (B) APPLICATION. (4): "...APPELLANTS SHALL SPECIFICALLY CITE AND EXPLAIN ONE OR MORE ALLEGED ERRORS: (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. 1. THE BOA FAILED TO EXAMINE THE WHOLE RECORD AND SIMPLY ACCEPTED THE ZHE’s FINDINGS REGARDING APPLICABLE POLICIES AS FOLLOWS: 1
• A. ZHE: “THE SIGN PLAN HELPS ACHIEVE THE COORS CORRIDOR PLAN SIGNAGE POLICY 1 RATIONALE OF PROVIDING ‘ADDED SAF ETY AND LESS DISTRACTION AND CONFUSION FOR THE MOTORIST. ’ " THE RECORD DOES NOT CONTAIN EVIDENCE THAT THE APPLICANT'S INTENTIONS REGARDING SIGNAGE (PRESUMABLY THE "SIGN PLAN") WOULD RESULT IN ADDED SAFETY AND LESS CONFUSION AND DISTRACTION FOR THE MOTORIST. THE RATIONALE OF CCP SIGNAGE POLICY 1 (CCP, P. 112) IS THAT ADDITIONAL SIGNAGE CONTROLS , MEANING THOSE IN THE CCP, WILL PROVIDE ADDED SAFETY AND LESS DISTRACTION FOR THE MOTORIST, AND IS BASED ON ADHEREING TO THE REGULATIONS RATHER THAN DEPARTING FROM THEM, THROUGH THE VARIANCE PROCESS. • B. THE ZHE FINDINGS REFERS TO THE ALBUQUERQUE/BERNALILLO COUNTY COMPREHENSIVE PLAN POLICY 2.0 INTENTION THAT SIGNS “SHALL BE DESIGNED F OR MINIMAL DISTRACTION [AND BE] NON-DISTRACTING TO MOTORISTS.” BOA/ZHE ERROR: THERE IS NO POLICY 2.0 IN THE COMPREHENSIVE PLAN. 2. THE BOA FAILED TO APPLY THE STRICT LITERAL INTERPRETATION OF THE PROVISIONS IN THE ZONING ORDINANCE IN REVIEW OF THE ZHE'S DECISION. THE RECORD SHOWS THAT VICE-CHAIR WOLFLEY HAD TO REMIND COMMISSIONERS ROBERT RAYNER AND TIM WATERS AS TO THE VARIANCE TEST REQUIRED. COMMISSIONER WOLFLEY: (Record: P. 35) [ "THERE ARE FOUR TESTS THAT A VARIANCE MUST MEET, AND I FEEL VERY CLEARLY THAT THE TEST RELATED TO SPECIAL SHAPE TOPOGRAPHY, SPECIAL CIRCUMSTANCES DOES NOT APPLY, AND DOESN'T USUALLY APPLY TO HOW SOMETHING IS PLATTED. AND I THINK THE FACT THAT IT'S PLATTED INTO 9 LOTS IS A SELF-IMPOSED CONDITION...WOULDN'T BE A GOOD BASIS FOR APPROVING A VARIANCE BECAUSE THAT'S ONE OF THE CRITERIA'S THAT THE CONDITION CANNOT BE SELF IMPOSED. FORTUNATELY OR NOT THERE ARE SECTOR DEVELOPMENT PLANS AND AREA PLANS LIKE THE COORS CORRIDOR PLAN THAT DO APPLY TO THIS PARCEL AND THAT WE HAVE TO ENTERTAIN IN REGARD TO THE VARIANCE, NOT JUST LOOKING AT WHAT'S ALONG THE CORRIDOR AND COMPARING IT. BUT THERE WERE CERTAIN REGULATIONS PUT IN PLACE IN THIS GEOGRAPHIC AREA THAT THE PROPERTY OWNERS ARE REQUIRED TO CONFORM WITH. THERE'S NOTHING IN OUR TEST THAT ASKS US TO LOOK AT SIGN CONSOLIDATION OR SAFETY. WHEN I TALK ABOUT PRECEDENT IT RELATES TO HOW THE BOARD APPLIES THE TEST FOR VARIANCE, AND I HAVEN'T HEARD FROM WHAT YOU SAID THAT YOU'RE FOLLOWING THE TEST." ] WSCONA CONCURS FULLY WITH VICE-CHAIR WOLFLEY'S POSITION. THE TWO OTHER BOARD MEMBERS DID NOT ADDRESS WHETHER ALL OF THE REQUIRED FOUR CONDITIONS FOR GRANTING A VARIANCE WERE MET. INSTEAD, COMMISSIONERS RAYNER AND WATERS ATTEMPTED TO MAKE THE ERRONEOUS CASE FOR EXCEPTIONALITY, SIGN CLUTTER, SAFETY AND SPECIAL CIRCUMSTANCE. 2
COMMISSIONER WATERS: (Record P. 34) [ "I THINK I SEE LOOKING AT THAT SITE PLAN I SEE THAT THE SITE IS UNIQUE I SEE THAT IT'S 21 ACRES. I'M NOT REAL FAMILIAR WITH THE WEST SIDE, BUT I CAN SEE THAT THERE'S FOUR SHOPPING CENTERS OR DEVELOPMENTS IN THAT AREA FROM MAYBE MONTANO ALL THE WAY TO THE FREEWAY THAT ARE THAT SIZE. AND I SEE , I DON'T KNOW WHAT THE SHOPPING CENTER IS AT THE FREEWAY AND COORS THERE WITH THE HOME DEPOT BUT I SEE BIG HUGE FLASHING SIGNS WHEN I DRIVE BY THERE. I THINK, SO I FEEL THE SITE IS UNIQUE. YOU NEED A PRESENCE, I THINK ELIMINATING THE SIGNS TO THREE SIGNS IN MY MIND I THINK THAT'S SAFER " ] WE DON'T ACCEPT THE COMMISSIONER'S LOGIC THAT A 21-ACRE LOT IS UNIQUE AND HOW THREE SIGNS ARE SAFER. ADDITIONALLY, THE SIGNS NEAR COORS AND I-40 DO NOT HAVE THE SAME SECTOR OR AREA PLAN RESTRICTIONS. ONE OF THE SIGNS HE REFERS TO IS ACTUALLY CONSTRUCTED AS A WALL SIGN AND NOT FREE-STANDING. COMMISSIONER RAYNER: (Record: P. 34-35) [ "I WANTED TO JUST HAVE A LITTLE BIT OF SAY THAT I WANTED TO THANK BOTH PARTIES FOR PROBABLY THE BEST PUT TOGETHER DOCUMENTS THAT WE'VE HAD IN A LONG TIME. THE SUMMARIES WERE VERY EASY TO GET, AND TO COMPARE THE DISCUSSIONS THAT YOU HAD. AND IT SORT OF CAME DOWN TO THE HARD FAST NUMBER, VERSUS SOMETHING MORE THAN KEEPING THE INTENT BUT I'M TRYING TO LOOK FOR (inaudible) AT SAFETY ON THE CORRIDOR. SO WHEN I WEIGHED THOSE TWO TOGETHER THAT'S WHY I FELT I COULD SECOND THE MOTION...I WOULD SAY THAT THIS SITE IS DIFFICULT OR DIFFERENT IN THAT IT IS A LARGE AND DEEP SITE" ] WSCONA DOESN'T ACCEPT THAT THE SITE IS EXCEPTIONAL SIMPLY BECAUSE IT IS "LARGE AND DEEP." ___________________________________________________________________________________ 3. 14-16-4-2: (C) (2): “ A VARIANCE APPLICATION SHALL BE APPROVED BY THE ZONING HEARING EXAMINER, IF AND ONLY IF, THE ZONING HEARING EXAMINER FINDS ALL OF THE FOLLOWING: CONDITION (A) THE APPLICATION IS NOT CONTRARY TO THE PUBLIC INTEREST OR INJURIOUS TO THE COMMUNITY. (Rec: Pg 5A Finding 3 - 6A-7A Finding 9,10,15,17,20,22) _____________________________________________________________________________________ WE CHALLENGED FINDINGS RELATED TO CONDITION (A). (Record Pg. 3A-8A) • IN FINDINGS 13 & 14 THE ZHE STIPULATES, "THE APPLICATION CAUSED SUBSTANTIAL OPPOSITION; THAT THE FOCUS OF THAT OPPOSITION IS ON A DESIRE TO PROTECT, AND HAVE APPLICANT COMPLY WITH, THE ZONING CODE, THE UNIVERSITY OF ALBUQUERQUE SECTOR DEVELOPMENT PLAN AND THE COORS CORRIDOR PLAN." • YET THE ZHE IN FINDING # 15 IGNORED THE PUBLIC INTEREST AND SUBSTANTIAL JUSTICE OF THE APPELLANT COMMUNITY FINDING, "IN A CAREFUL REVIEW OF ALL MATERIALS SUBMITTED AND TESTIMONY 3
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