The Truth or Consequences City Commission put off the selection of planning and zoning commissioners for a third time at the 6.22.22 city commission meeting. There are four seats open on the five-person commission. Only Chris Sisney remains on the board. Jim Bush’s term ends at the end of this month and he is not seeking to serve again. Michael Hogg, chair, died about a month ago. Two seats have been vacant for over a year.
The first time the decision was delayed, Rick Dumiak, then the only applicant, was accused by City Attorney Jay Rubin of being an opponent of the city because he signed a petition in support of George Henson’s art installation on his private property on Wyona Street. The city commission took Rubin’s advice and agreed to hold off on P&Z appointments until the June meeting—after a May 25 court case between Henson and the city was heard.
At the June 8 city commission meeting, P&Z appointments were taken off the agenda, the city commission stating its removal was due to the death of Michael Hogg.
At the June 22 meeting, five applicants were on the agenda to be interviewed, but only three showed up. The city commission decided to wait until they could interview the two other applicants.
Rick Dumiak, Eduardo Alicia and Susan Buhler were interviewed. Esther Luchini and Robert Carey will be interviewed at the next meeting.
Mayor Pro Tem Rolf Hechler suggested they ask the same questions of all candidates and those not being interviewed leave the chamber. The other city commissioners agreed.
Hechler asked: “Where do you see the city in 10 years?” and “How will you make an impartial decision, even if it has detrimental effects on your neighbors or your property?”
City Commissioner Merry Jo Fahl asked: “How do you feel about commercial development and how would you make it easier?” and “How do you feel about residential development?”
City Commissioner Shelly Harrelson asked: “How will you work collaboratively with the city?”
Mayor Amanda Forrister asked: “How will you feel if we go against your advice?”
Only Rick Dumiak, with extensive experience as a developer, project manager and contractor for private and government agencies, understood that a P&Z commissioner’s function is not to favor businesses, developers and contractors, but to act as an impartial judge, making written findings of fact and basing orders and rulings on city code.
Sidebar: See City Code Chapter 15, Subdivision Code, and Chapter 16, Comprehensive Planning and Zoning Code, for findings-of-fact requirements and city and P&Z commission duties and functions. The city and P&Z commissions are to act as a check and balance on each other, as well as on the planning and zoning administrator, who has been designated as Assistant City Manager Traci Alvarez. Although Mayor Amanda Forrister repeatedly said, “you are just an advisory board,” that is not true. The P&Z acts as an independent authority in decisions on alternate summary replats and home occupation permits. The P&Z members also must swear an oath to uphold local, state and federal laws and constitutions (as must the city commissioners). As a quasi-judicial body, the P&Z holds public hearings and takes official testimony in determining land use decisions.
Dumiak’s responses included, “You have to follow the code,” and “It doesn’t matter how I feel,” and “I’m not pro or con,” and “look at the facts.”
In response to Forrister’s question, Dumiak said, “I know it going in [the city commission may go against the P&Z recommendation], and “If I don’t like it, I’ll run for commissioner.”
Buhler and Alicia expressed a willingness to work with the city commission and to promote business and residential development, especially downtown. Buhler said she would promote spaceport development.
Sidebar: The thrust of the state Open Meetings Act is to prevent city commissioners and P&Z commissioners from conferring with each other, unless it is at a noticed public meeting with an agenda specifying what is to be discussed and acted on.
Sidebar: Favoring any party or individual is also prohibited by the U.S. Constitution’s 14th Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” “Spot zoning” is illegal, defined in city code Chapter 16, 11-8-1, as: “The singling out of a lot or small area for a District change, which is out of harmony with the comprehensive plan and surrounding land to secure special benefits for a particular property owner without regard for the rights of adjacent landowners.”
Hechler said he was willing to appoint one of the applicants “now,” but the majority of commissioners agreed to wait to interview the remaining two applicants.
Sidebar: City code citations pertinent to city and P&Z commissions operating as checks and balances on each other and on the P&Z administrator, their duties and functions and fact-finding requirements (bolded by me):
Chapter 15, Subdivision Code
15-15 D. Subdivision code, approvals required; three mile limit; interpretations
Interpretations: The City’s Zoning Administrator shall have the right to make preliminary interpretations of the meaning of this Code. Interpretations by the Zoning Administrator may be appealed to the Planning and Zoning Commission, which may uphold, amend or reverse such interpretations. Interpretations by the Planning and Zoning Commission may be appealed to the City Commission, which may uphold, amend or reverse such interpretations. Interpretations by the City Commission may be appealed to a court having legal jurisdiction over the matter being appealed. Any appeal must be filed with the office of the City Clerk on or before 30 days following the date of the decision.
Chapter 16, Comprehensive Planning and Zoning code:
- Sec. 11-2-2. – The Planning and Zoning Commission.
A. Purpose. A Municipal Planning and Zoning Commission is hereby established for the purpose of interpretation of this Code, approving certain actions, receiving requests for modifications to this Code and re-zoning, and making recommendations to the City Commission concerning matters pertaining to zoning within the City.
B. Administrative review and interpretations.
1. The Planning and Zoning Commission shall review an administrative action of the designated Zoning Administrator when it is alleged that there is an error in the order, requirement, determination, or refusal made by the designated Zoning Administrator and reverse, affirm, or modify the administrative action.
2. The Commission shall interpret this Code when the designated Zoning Administrator is in doubt as to the exact meaning of the text.
3. The Commission shall interpret the Official Planning and Zoning District Map in accordance with the standards set forth in the Comprehensive Planning and Zoning Code when the designated Zoning Administrator is uncertain as to the exact boundary of a District shown on the Official Planning and Zoning District Map.
C. Powers and duties.
1.Recommend to the City Commission either approval, denial or modification of a request for annexation, special use permit, variance, subdivision, zoning, amendment of this Code, or any other land use consideration within the planning and zoning jurisdiction of the City.
2. Grant final approval or denial of a home occupation or conditional use permit after public meeting, provided there is not an appeal to the City Commission within fifteen (15) days in accordance with Article 7 of this Code.
D. Composition of the Planning and Zoning Commission. The Planning and Zoning Commission shall consist of five (5) members each to be appointed by a simple majority of the City Commission. Eligibility requirements for membership shall be established by the City Commission. Members shall serve staggered terms of two (2) years each. A recording secretary shall be provided to assist the Planning and Zoning Commission by the City. The recording secretary shall not be a member of the Planning and Zoning Commission and shall be only responsible for those duties requested by the Planning and Zoning Commission and approved by the City Manager.
E. Organization of the Planning and Zoning Commission. The Planning and Zoning Commission shall elect a chairman, vice-chairman, and second vice-chairman in July of each year, or as required due to unforeseen vacancies. They shall serve for one (1) calendar year following their elections.
F. Voting. A simple majority vote of a quorum of the Planning and Zoning Commission is required for approval of all Planning and Zoning Commission actions. A quorum requires at least three members of the Commission present.
In order for a vote to be valid on a particular issue, a quorum must actually vote regarding the measure. A member who abstains from voting on an issue is deemed to have not voted on the issue.
G. Findings of facts for recommendations and decisions. In considering all requests, the Planning and Zoning Commission shall review applicable plans and determine whether the request will:
1. Impair an adequate supply of light and air to adjacent property;
2. Unreasonably increase the traffic in public streets;
3. Increase the danger of fire or endanger the public safety;
4. Deter the orderly and phased growth and development of the community;
5. Unreasonably impair established property values within the surrounding area;
6. In any other respect impair the public health, safety and general welfare of the City; or
7. Constitute a spot zone and therefore adversely affect adjacent property values.
All actions or recommendations by the Planning and Zoning Commission shall be based on Findings of Facts as to the impacts of the proposal, using the criteria listed in numbers 1 through 7, above. The Planning and Zoning Commission shall review each of the above listed factors and accord each factor the necessary weight on a case-by-case basis in making its determination.
H. Report to the City Commission. The Planning and Zoning Commission shall provide written minutes, with recommendations as necessary, to the City Commission on all matters that are brought before the Commission. Such minutes shall include a statement of the findings of facts that were the basis of any decision or recommendation made by the Planning and Zoning Commission.
Chapter 16:
- Sec. 11-2-3. – The City Commission.
The City Commission shall make all final decisions concerning amendments to this Code, original zoning, re-zoning, variances, appeals, and special use permits, and subdivisions.
All actions by the City Commission shall be based on and stated as a Findings of Facts of the impacts of the proposal, using the criteria listed in Section 1-2-2 H1 through 7, above. The City Commission shall review each of the above listed factors and accord each factor the necessary weight on a case-by-case basis in making its determination.