Before the City Council

BEFORE THE CITY COUNCIL

APPEAL OF THE ZONING BOARD OF APPEALS DECISION

Appeal Nos.: 18BOA-2007 & 18BOA-2008

(Project 1011410: 17-ZHE: 80247 & 80249)

The West Side Coalition of Neighborhood Associations (WSCONA) Appeals the Zoning Board of Appeals (BOA) 2-1 decision to Deny the Appeal(s) of the Zoning Hearing Examiner's (ZHE) decision.

1. STANDING: WSCONA isa coalition duly registered with the City of Albuquerque’s Office of Neighborhood Coordination. It represents numerous neighborhood associations on the West Side from three different City Council Districts. The respective properties are contained within the boundaries of WSCONA.

2. REQUIREMENTS FOR APPEAL:

14-16-4-4 APPEAL. (B) Application. (4): Applications for an appeal shall clearly articulate the reasons for the appeal; 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.

3. 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.

THE BOA ERRED. ITS DECISION WAS ARBITRARY, CAPRICIOUS AND MANIFESTLY ABUSIVE OF DISCRETION. THE BOA FAILED TO APPLY THE STRICT LITERAL INTERPRETATION OF THE PROVISIONS IN THE ZONING ORDINANCE IN REVIEW OF THE ZHE'S DECISION.

WE BELIEVE THE CITY COUNCIL WILL FIND UPON THE WHOLE RECORD REVIEW THAT THE BOA AND THE ZHE TOOK UNREASONED ACTION WITHOUT CONSIDERATION,ORDISREGARD OF THE FACTS AND CIRCUMSTANCES.

A.The record will show that Vice-Chair, Jolene Wolfely reminded Board Members, Mr. Robert Rayner and Mr. Tim Waters that ["I believe the BOA hasfailed to carry out its duty to determine if the conditions in [14-16-4-2: (C) (2) haveall been met"].

THE WHOLE RECORD REVIEW WILL SHOW THAT MRS. WOLFLEY'S POSITION (AND THAT OF THE APPELLANT’S) IS CORRECT - NOT ALLOF THE REQUIRED FOUR CONDITIONSFOR GRANTING A VARIANCE WERE MET.

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 ALLof the following:

(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)

(b) There are special circumstances applicable to the subject property which do not apply generally to other property in the same zone and vicinity such as size, shape, topography, location, surroundings, or physical characteristics created by natural forces or government action for which no compensation was paid;(Rec: Pg 6A Finding 6 - Pg 7A Finding 23,24)

(c) Such Special Circumstances were not self-imposed and create an unnecessary hardship in the form of a substantial and unjustified limitation on the reasonable use or return on the property that need not be endured to achieve the intent and purpose of the Zoning Code (§14-16-1-3) and the applicable zoning district; as required by Section 14-16-4-2(C)(2)(c)." (Pg 7A-8A Finding 25,26,27,28,29,30,31)

(d) Substantial justice is done.”(Pg 7A Finding 32)

B.The City of Albuquerque Zoning Code of Ordinances Section 14-16-4-2 (C)(1)(2) (Special Exceptions – Variance):

(C) Criteria for Decision. The city shall approve a special exception if the evidence presented to the recordshows that the following criteria are met.IT IS THE BURDEN OF THE APPLICANT TO ENSURE THERE IS SUCH EVIDENCE IN THE RECORD.

THE ZHE/BOA FAILED TO PLACE THE REQUIRED BURDEN OF PROOF ON THE APPLICANT AND INSTEAD; PLACED THE BURDEN ON THE APPLICANTS.

THE RECORD WILL SHOW A GLARING LACK OF EVIDENCE TO SUPPORT THE ZHE'S DECISION AND, THE BOA FAILED TO EXAMINE THE EXTENT OF STATEMENTS MADE BY THE APPLICANT THAT WERE UNSUPORTED BY EVIDENCE.(Rec: Pg 6A Finding 12 - 7A Finding 21,)

C.The ZHE erred by not applying adopted city plans, policies, and ordinances in arriving at its decision - and the BOA did not examine it.

THE SITE IN QUESTION IS CONTROLLED BY THE COORS CORRIDOR PLAN, UNIVERSITY OF ALBUQUERQUE SECTOR DEVELOPMENT PLAN, THE DRB CONDITIONS OF FINAL APPROVAL, THE WEST SIDE STRATEGIC PLAN, AND ALBUQUERQUE-BERNALILLO COMPREHENSIVE PLAN. (Rec: Pg 5A Bullet Points 4-5 - Pg 6A Finding 13,14)

THE TWO BOA MEMBERS VOTING TO DENY THE APPEAL(S) FAILED TO CONSIDER APPLICABLE PLANS-POLICIES-REGULATIONS GOVERNING THE SITE IN QUESTION.

D. The ZHE awarded a high degree of deference to the Applicant with regard to Substantial Justice while failing to consider equal justice for the Appellants, stating: "The ZHE finds that substantial justice will be done if this Application is approved, as required pursuant to Section 14-16-4-2 (C)(2)(d)."

THE APPLICANT DID NOT ARGUE SUBSTANTIAL JUSTICE BEFORE THE ZHE OR BOA - NOR DID HE PROVE GRANTING THE VARIANCES WOULD ACHIEVE IT. THE BOA FAILED TO ADDRESS ONE OF FOUR 'CORNERSTONE CONDITIONS' FOR GRANTING A VARIANCE.(Rec: Pg 5A Bullet Point 6 - Pg 7A Finding 22 - Pg 8A Finding 32)

THERE IS NO DEFINITION OF SUBSTANTIAL JUSTICE IN THE ZONING

CODE AND SO WE TURN TO THE LEGAL DEFINITION:

LegalDefinition ofSubstantial Justice:

justice of a sufficient degree especially to satisfy a standard of fairness;
Substantial justicemeansjusticeadministered according to rules ofsubstantive lawin a fair manner...Substantial justiceensures a fair trial on merits.

THE CONCEPT OF SUBSTANTIAL JUSTICE RAISES ISSUES OF FAIRNESS FOR NEIGHBORS AND THE COMMUNITY. THIS CONCEPT ECHOES THE REQUIREMENT THAT HARDSHIP MUST BE PECULIAR TO THE PROPERTY - NOT SHARED BY THE COMMUNITY. IF EVERYONE BEARS THIS HARDSHIP, THEN ONE 'LUCKY' APPLICANT SHOULD NOT BE RELIEVED THROUGH VARIANCE. THE HARDSHIP HAS TO BE MORE THAN INCONVENIENCE TO ONE.

SUBSTANTIAL JUSTICE WOULD GIVE THE APPLELLANT COMMUNITY EQUITABLE CONSIDERATION UNDER THE LAW AND IMPARTIAL APPLICATION OF PLANS AND POLICIES.

E.STAFF SUGGESTED FINDINGS to the BOA: In review of the whole record by staff, just the sheer weight of the seven Findings to Approve the Appeal - as opposed to the mere three Findings to Deny the Appeal - is extremely telling.

APPELLANTS AGREE WITH PROPOSED FINDINGS BY STAFF TO APPROVE THE APPEAL. THESE FINDINGS FURTHER SHOW LACK OF THOROUGHNESS IN READING THE RECORD BY THE BOA.

ALTHOUGH NOT IN THE RECORD AS OF THIS WRITING, THE ENTIRETY OF STAFF'S SUGGESTED FINDINGS IS ATTACHED TO THIS STATEMENT OF APPEAL AS AN ADDENDUM. THE KEY PROPOSED FINDINGS ARE ENTERED BELOW FOR THE PURPOSE OF BRINGING FOCUS TO THE ISSUES.

Drafted Findings for the Board’s Use

ToDeny the appealand uphold the ZHE decision:

X. The variance would make multi-tenant signagefeasible,whichwould result inlessconfusingandcluttered individual signage for the parcels and the shopping center overall and therefore would be less visually intrusivefor the area.

X. A lack of multi-tenant signage wouldcreate a hardship for the interior lot tenants whose businessescould not beeasilyseenfrom the street.

X. There is no evidence in the record that the proposed signs would block views for the community from Coors Blvd. The CCP view regulations apply to buildings in Segments 3 and 4 of Coors Blvd. The variance does not have to do with buildings, and the subject property is located in Segment 2.

-OR-

ToGrant the appealand overturn the ZHE decision:

X. The ZHE’s finding thatsigns for each lotwould present a traffichazardas motorists become distracted lookingfor dispersed signage, based on the applicant’s claim that “reduced signclutter would be saferfor motorists”, is not supported by substantial evidence in the record and therefore is arbitrary.

X. The ZHE’s findings regarding applicable policies are in error, as follows:

A. “The sign plan helps achieve the Coors Corridor Plan Signage Policy 1 rationale of providing ‘added safety 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 distraction and confusion 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 adhering 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 for minimal distraction [and be] non-distracting to motorists.” There is no Policy 2.0 in the Comprehensive Plan.

X. The BOA finds that the ZHE erred in his determination that special circumstances apply to the subject property that do not apply generally to other property in the same zone and vicinity, as required by §14-16-4-2(C)(2)(b). The subject property’s location between a church and a school.

For these and other reasons, the West Side Coalition of Neighborhood Associations strongly encourages the City Council UPHOLD WSCONA'S APPEAL of the BOA Decision.

Respectfully submitted,

Dr. Joe L. Valles: Executive Committee MemberWSCONA

Jerry Worrall: President, WSCONA

Addendum:

Zoning Board of Appeals (BOA)

18BOA-20008 (sign area)

Project #1011410 (18ZHE-80249)

Appellant: Dr. Joe Valles

Date: April 24, 2018

Staff’s Suggested Findings:

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This is an APPEAL of the Zoning Hearing Examiner’s (ZHE) APPROVAL of a SPECIAL EXCEPTION pursuant to Zoning Code §14-16-2-24(A) and Section B-2 of the University of Albuquerque Sector Development Plan (UASDP), and the Coors Corridor Plan (CCP) p. 113: a VARIANCE of 109 sf to the maximum allowable sign area of 24 sf (UASDP) and a VARIANCE of 58 sf to the maximum allowable sign area of 75 sf (CCP) to allow a 133 sf sign face for a free-standing sign (the “subject application”).
The subject site is described as Tract X-1-A2, plat of Tracts X-1-A1 and X-1-A2, University of Albuquerque Urban Center, containing approximately 21.1 acres and located at the northwest corner of the intersection of Coors Blvd. NW and St. Joseph’s Dr. NW (5801 St. Joseph’s Dr. NW- the “subject property”). The subject property is vacant.
The original application was first scheduled to be heard at the November 21, 2017 ZHE hearing. The request was deferred to the December 19, 2018 at the applicant’s request. At the December hearing, the request was deferred to the January 16, 2018 hearing to allow the applicant to meet with concerned individuals and to allow the Traffic Engineering Division time to do its review. At the January hearing, the request was deferred and the matter was referred to the land use facilitation program.

The subject property is within the boundaries of the University of Albuquerque Sector Development Plan (UASDP), the Coors Corridor Plan (CCP), and the Westside Strategic Plan (WSSP). The subject property is located in Segment 2 of the Coors Corridor.
The Albuquerque/Bernalillo County Comprehensive Plan, the UASDP, the CCP, the WSSP, and the City of Albuquerque Zoning Code are incorporated herein by reference and made part of the record for all purposes.
The subject site is zoned SU-3 Special Center Zone (Zoning Code §14-16-2-24). Subsection (A) states that specifications in the Sector Development Plan control.
The UASDP contains design regulations pertaining to signage. Regulation B-2 states that “The maximum allowable sign area is 24 square feet on a single face. A double faced sign is allowed to have 24 square feet of sign area per face”. Regulation B-2 is under the heading “Single Tenant Freestanding Sign”, which is intended for single-tenant buildings and allows each building to have a monument sign. The applicant intends to install free-standing, multi-tenant signage for a collection of single-tenant buildings.

The subject property is not a shopping center (SC) site by definition. Though it exceeds five acres in size, the zoning is SU-3.

SHOPPING CENTER SITE. A premises containing five or more acres; zoned P, C-1, C-2, C-3, M-1, M-2, or a combination thereof; or a large retail facility; but excluding premises used and proposed to be used only for manufacturing, assembling, treating, repairing, rebuilding, wholesaling, and warehousing. Shopping center sites are subject to the shopping center regulations of the Zoning Code § 14-16-3-2.

The Shopping Center Regulations in Zoning Code § 14-16-3-2 do not apply because the subject property is not a shopping center site.

Zoning Code §14-16-4-2(C)(2), Special Exceptions, states that a variance shall be approved by the ZHE, if and only if, the ZHE finds all of the following:

(a) The application is not contrary to the public interest or injurious to the community, or to property or improvements in the vicinity;

(c) Such special circumstances were not self-imposed and create an unnecessary hardship in the form of a substantial and unjustified limitation on the reasonable use or return on the property that need not be endured to achieve the intent and purpose of the Zoning Code (§14-16-1-3) and the applicable zoning district; and

(d) Substantial justice is done.

Pursuant to Zoning Code §14-16-4-2(C)(2), all of the tests (a, b, c, and d) must be met for a variance to be approved.

The ZHE found that the applicant bears the burden of ensuring that there is evidence in the record to support findings that the above criteria are met pursuant to §14-16-4-2(C).
TheZHEfoundthatsubject applicationisnot:(i)contrarytothepublicinterest,(ii)injurioustothe community;or(iii)injurioustotheproperty orimprovementslocatedinthevicinity as required bySection 14-16-4-2 (C)(2)(a).

The ZHE found that special circumstances apply to the subject property that do not apply generally to other property in the same zone and vicinity, as required by §14-16-4-2(C)(2)(b). TheZHEacknowledgestheapplicant’spositionthatthespeciallocationofthe21-acre, nine-lotdevelopmentbetweenachurchandaschoolsupportsconsolidatingsignsfornine lots into threesigns.

Inaddition,theZHEfindsthattheshapeofthesubjectproperty,whichresultsinnine differentlotsfor ninedifferenttenants,butinadequatestreetfrontagetomeetthe300’ frontagerequirement foreach of thelots, isaspecial circumstance. Anotheraspectofthelocationofthelots,thatis,therelationshipoftheninelotsastheyare laidout,issuchthatnotallstorefrontsintheshopping plazawillbevisibletomotorists, whetherfrom Coors Blvd. orSt. Josephs Drive NW.

The ZHE found that such special circumstances were not self-imposed and create an unnecessary hardship in the form of a substantial and unjustified limitation on the reasonable use or return on the property that need not be endured to achieve the intent and purpose of the Zoning Code (§14-16-1-3) and the applicable district, as required by Section 14-16-4-2(C)(2)(c). Specifically, the ZHE finds that the development of the surrounding properties and their uses, and the 300’ sign frontage requirement, are not self-imposed and create an unnecessary hardship.
The ZHE also found that substantial justice will be done if this Application is approved, as required pursuant to Section 14-16-4-2 (C)(2)(d).
The ZHE concluded that all tests of Zoning Code §14-16-4-2(C)(2) were met, and therefore approved the subject application for a variance.
Zoning Code Section §14-16-4-4(B)(4) states that an appellant to a special exception action shall clearly articulate the reasons for the appeal by specifically citing and explaining one or more alleged errors of the ZHE in rendering his decision:

(a) in applying adopted city plans, policies and ordinances in arriving at his decision;

(b) in the appealed action or decision, including its stated facts; and

The appellant refers to all three reasons for appeal. The appellant believes that the ZHE’s decision was arbitrary, capricious, and manifestly abusive of discretion because his conclusions were unsupported by evidence in the record and he placed the burden of proof on party opponents rather than on the applicant.

The ZHE erred in applying the Albuquerque Code of Ordinances because the variance application does not meet all the tests for granting a variance as required. Specifically, the subject property is not exceptional or any different from other properties along Coors Blvd. with respect to size, shape, and topography, and the configuration of the shopping center plan was a circumstance entirely created by the applicant. Also, the UASDP and the CCP were adopted to prevent injury to the community and their requirements should be adhered to (Record, p. 3-A).

18. In December 2017, the Environmental Planning Commission (EPC) approved the applicant’s request to amend the existing Site Development Plan for Subdivision, with design standards, for the subject property (known as Coors Pavilion, Project #1000032). The amendment consisted of removing text from the signage design standards that would have required that the “signs shall be coordinated to have the same appearance (height, size, color, material, text height, style, etc.) at all locations.”

19. The EPC’s approval of the site development plan for subdivision amendment regarding free-standing signage was based upon two conditions:

A. Condition #3: The applicant will add a sentence stating that signage colors, materials, and lettering will be similar and compatible with the building style of the development, and

B. Condition #4: Remove the sign diagrams in the signage section (of the design standards).

Therefore, the applicant will not be required to amend the site development plan for subdivision due to the amended variance request.

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INSERT BOA FINDINGS HERE

X. Based on these findings, the Zoning Board of Appeals concludes that the decision of the ZHE in denying the special exception (variance) request was correct/INCORRECT. Therefore, the appeal is DENIED/GRANTED and the decision of the ZHE is AFFIRMED/REVERSED.

18BOA-20008, sign area- p. 1 of 11

Drafted Findings for the Board’s Use

18BOA-20008, sign area- p. 1 of 11

To deny the appeal and uphold the ZHE decision:

X. Thevariance would makemulti-tenantsignagefeasible, which wouldresultin less confusingand cluttered individualsignagefor the parcels and the shopping center overall and therefore would be lessvisuallyintrusive for the area.

X. A lack of multi-tenant signagewouldcreateahardshipforthe interiorlottenants whosebusinesses could notbeeasilyseen from the street.