If the Truth or Consequences zoning code were followed, a contentious variance application would never have come before the planning and zoning commission and then the City Commission.
Traci Alvarez, the city’s zoning administrator and assistant city manager, allowed Ambrosio Sainz to apply for a setback variance for the front, back and side of a proposed single-family home on his “nonconforming” lot at 1095 E. Riverside Dr.
Alvarez cited law 11-4-1 to the P&Z on nonconforming land use, and then ignored her duty to uphold it by denying Sainz’ variance application. The law essentially states that if a subsequent zoning law makes one’s land use illegal, that zoning law will not be retroactive. One’s once-legal-but-now-nonconforming use is legal, but no further expansion of nonconforming use will be allowed.
Alvarez should have cited 11-4-8, since it addresses nonconforming lots in particular: “When a legal non-conforming lot can be used in conformity with all of the regulations applicable to the intended use, except that the lot is smaller than the required minimum set forth in Article 14 of this Code, the lot may be used as if it were conforming.”
Sainz can’t conform with “all the regulations applicable.” He should not have been allowed to apply for a variance.
Sainz wants to build an 819 square-foot house on a 2,027.7 square-foot lot. Alvarez incorrectly said it will be an 899 square foot house, but if that is correct, the sketch submitted to the P&Z is wrong.
His property is in the RR-1 or Riverside Residential area, which zone is defined in 11-9-6 as: “The RR-1 District is a low density residential District comprised primarily of single family frame and/or manufactured dwellings. It is intended that the RR-1 District provide a pleasant and fairly low density setting for those who desire to live near the Rio Grande.”
The minimum lot size in RR-1 is 5,000 square feet, which is why Sainz’ currently empty lot, which is less than half the minimum requirement, is nonconforming. The RR-1 zone’s minimum dwelling size is 800 square feet, with a front setback of 25 feet, side setback of 5 feet and back setback of 15 feet. He can’t meet the front, back and one side of the side setback requirements if he builds the house as planned.
During testimony taken at the P&Z public hearing, Sainz said he was told by the realtor, before he bought the land about two years ago, that it was a nonconforming lot. Sainz also said the zoning administrator, supposedly Alvarez, told him all he had to do was apply for a variance if he wanted to build.
Unlike other cities I have reported on in my 20 years as a local-government reporter, T or C hands out variances at the drop of a hat. Other cities did so rarely and made sure they were on strong legal footing. The realized variances weaken their zoning code and thus their aims to increase property values, beautify their city and promote the happiness of its people. Every variance, every exception given to the zoning law, creates a precedent. Since our state and federal constitutions guarantee equal rights and equal application of the law, such exceptions to the law had to be scrupulously reasoned and backed by evidence.
Our city code, as with most city codes, under 11-5-5, states the only reason a variance can be granted is because the land is somehow awkward, such as it has a huge gully in the middle, a steep incline, a rock outcropping that creates a “hardship” in conforming to the law.
Historically the city gives variances for unclear reasons. I’ve seen several variances given to those not wishing to put in sidewalks because of “financial hardship,” which is showing favor to a person for personal reasons. At this point, anyone being pressured to put in sidewalks would have plenty of evidence and precedence for not doing so, if they chose to take it to court.
A recent variance allowed a metal building—two runs of rentable storage units—without cladding on a major artery. City Commissioner Destiny Mitchell said that the code requiring wood or brick or stone cladding instead of the plain metal siding “is just semantics.” Mayor Pro Tem Amanda Forrister and City Commissioner Merry Jo Fahl said the metal storage units would be “aesthetically pleasing.” Most cities only allow storage units and metal buildings in industrial zones because they decrease property values and are considered utilitarian, not pleasing. That variance was granted because the city commissioners’ aesthetic opinions were deemed superior to the code. The code therefore didn’t have to be upheld.
Sometimes a variance that should come before the P&Z and city commission doesn’t, because Alvarez doesn’t make the property owner apply. Since the P&Z and city commission appear to be unfamiliar with the code, they don’t notice exceptions to the code are being granted on the sly.
In the Sainz case, P&Z Commissioner Lisa Kent asked Alvarez if there were parking requirements. Alvarez merely stated that Sainz could park on his lot and on the street instead of citing the code requirements.
City code 11-12-3 says that in the RR-1 zone, a single family home must provide “1.5” street parking spaces. One space is defined as 22 feet long by 9 feet wide. Since the lot is 23 feet wide, a single family home should be prohibited since it can only provide one parking space on the street and zero parking that does not obstruct the driveway.
The city code also says that the single-family home in an RR-I must provide off-street parking, which can only take up one-third of the front yard. Sainz’ plan showed a parking area 17 feet wide by 25 feet deep—a covered parking area that is not only more than one-third of the front yard, the car port cover counts as an impingement of the required setback area. Alvarez did not make Sainz apply for a variance request for this further expansion of a nonconforming use of a nonconforming lot.
When the Sainz case came before the city commission on Dec. 18, Fahl said she disagreed that giving variances created precedent. “It’s case by case,” Fahl said. Just as all court cases are case by case, the P&Z and the city commission sit as a quasi-judicial body and rule on a case by case basis. How does that preclude setting precedent?
Forrister even chided one of the neighbors for exercising her right as an adjacent property owner to protest the variance application. “It’s his property, he can do what he wants,” Forrister said, adding that she had “problems” with restrictions on private property rights.
Such a statement should disqualify Forrister from ruling in a land-use case, since city zoning code dictates and restricts how private property can be used and it is her job not to undermine and ignore the law because of her personal beliefs, but to uphold the city code on behalf of the people, and to apply it equitably, not favoring Sainz’ property rights over his neighbor’s.
In response to Forrister, the property owner asked, “Why even have an RR-1 zone?”
Mayor Rolf Hechler claimed granting the setback variances would not hurt the neighbor’s property values, making that conclusionary statement with no evidence or reasoning, refuting testimony from neighbor property owners. He even claimed his bald assertion was “a finding of fact.”
The variance law, 11-5-5, states “Variance shall not be granted in such cases where it would adversely affect adjoining properties, impair established property values, or endanger public safety.” Although two adjoining property owners and a person living across the street complained about parking and crowding and the city’s inequitable application of the zoning code—they had to comply when they bought their properties, and at great expense—their testimony was disregarded by the city commission.
The P&Z tied 2 to 2 on the variance request, making it a nullity. The city commission voted in favor, 4 to 1, only City Commissioner Destiny Mitchell voting nay.
One neighbor threatened to take the city to court if the variance were granted during the P&Z public hearing. Where private property rights meet governmental zoning power fireworks often occur.
As far as Riverside’s low-density goes, it’s now shot. Some developer might want to buy up lots, halve their size and put 800 square-foot homes on them, disregarding setbacks, all along the river. If the plan is challenged, the city’s lack of due consideration, the inequitable application of zoning code, the disregard of some zoning codes and the general non-judicial process will give the developer plenty of ammunition in court.