2021 JUNE 5 ISSUE: JUNE 15 VOTE ON NEW RULES FOR ‘CASITAS’

The Village Council is expected to vote on an ordinance clarifying regulations, and imposing new restrictions on, construction or conversion of secondary dwellings, commonly referred to as “casitas,” at its June 15 meeting. The council unanimously approved the draft ordinance at its May 25 session.

In the past, many Corrales property owners have rented out casitas or guesthouses in what other villagers consider a contravention of the Village’s “one home per acre” rule that dates back to the community’s incorporation as a municipality in 1971.

It’s a guaranteed perennial controversy, ebbing and rising with the times. Even though the intent of Corrales’ ordinances and regulations would seem to be clear —maintain a low residential density to retain a semi-rural ambiance and prevent drinking water contamination due to septic overload— good and compassionate exceptions have always been proposed.

Most often the rationale for non-compliance with the one-acre minimum lot size for a dwelling (two acres in the former Bernalillo County portion of Corrales) has been that living quarters were needed so that a son or daughter could look after an elderly, frail parent. Usually such a request for a variance or exception has been disallowed, even if the caregiver were living in a mobile home or trailer that would (or at least, could) be removed after the family crisis had passed.

More often than not, that secondary dwelling remained indefinitely as a rental because no one in Village government checked and because neighbors were reluctant to report the offense.

But the controversy heated up in recent years, especially as new homes were built on vacant lots along with a sizable secondary dwelling. (See Corrales Comment Vol.XXXX No.5 April 24, 2021 “Give Your Opinions About Impact of Casitas on Density, Well Water Quality.”)

But why, if Corrales’ zoning ordinances disallow two homes on a one-acre home site, would a building permit be granted for a casita, especially if that permit was requested at the exact some time that the primary house was to be constructed?

The answer is found in loopholes in the Village’s laws and particularly in how a “dwelling” is defined. In recent years, a second residence has not beenprohibited unless it has a kitchen, or a full kitchen. What, exactly, constitutes a kitchen? A room that has a cooking range? Or a new construction that is plumbed for a gas or electric range, even if one is not to be installed right away? What about a microwave appliance?

The amendment to be voted on June 15 attempts to settle the controversy with the following provisions. “Kitchen: means any room used, intended or designed to be used for cooking or the preparation of food or containing a range or oven, or utility connections suitable for servicing a range or oven.”
At that time, a further amendment to the definition of kitchen is expected, based on discussion among councillors at their May 25 meeting. Councillor Stu Murray offered a new meaning used in the 2015 International Building Code. A kitchen is a “space in a home designed to be used for the preparation of food.”
P&Z Administrator Stout said she liked the new definition. “I think that’s a good idea,” she affirmed. “I think that amendment would work just fine, and our office would be able to uphold that.”
The only hesitancy came from Councillor Tyson Parker, an architect, who cautioned that the new wording could have unintended consequences from circular logic.
Another key amendment defines a dwelling unit as “One or more rooms and a single kitchen designed as a unit for human occupancy/ habitation by one family for living and sleeping purposes, but not including recreational vehicles, travel trailers or converted buses, whether on wheels or a permanent foundation. A dwelling unit may be a mobile home, modular home, manufactured home or site-built house. It may also be an independent unit of an apartment, townhouse or other such multiple-unit residential structure, where allowed.”

Published below is the verbatim text of the proposed amendment to the Village of Corrales’ land use policy regarding casitas, guesthouses or accessory structures.

Proposed Ordinance No. 21-04
An ordinance amending Section 18-29 and 18-203 of the Village Land Use Code to provide clarity to the definitions of accessory structures, accessory use, kitchen and dwelling unit.

Whereas, the Village of Corrales Comprehensive Land Use Plan (2009) includes policy 2.3.1 which directs the Village to require the residential dwelling unit density to be limited to a maximum of one per lot, with a minimum lot size of one or two acres, depending on the zone, and; Whereas, New Mexico State Statute directs that the zoning ordinances should be in accordance with the comprehensive plan:

“the regulations and restrictions of the county or municipal zoning authority are to be in accordance with a comprehensive plan and be designed to:
1. Lessen congestion in the streets and public ways;
2. Secure safety from fire, floodwaters, panic and other dangers;
3. Promote health and the general welfare;
4. Provide adequate light and air;
5. Prevent the overcrowding of the land;
6. Avoid undue concentration of population;
7. Facilitate adequate provision for transportation, water, sewerage, schools, parks and other public requirements; and
8. Control and abate the unsightly use of buildings or land”, and;
Whereas, as per Village Code Section 18-28 (a) “any use not classified as a permissive use or a use by review within a particular zone is hereby prohibited from that zone”, and;

Whereas, in accordance with the Comprehensive Land Use Plan, Village ordinances limit density to one dwelling unit per lot, with a minimum lot size of one acre in A-1 Agricultural and Rural Residential, Historical, and Neighborhood Commercial zones and two acres in A-2 Agricultural and Rural Residential zone. (Dwelling units are not a permissive use in Professional Office or Municipal zones); and

Whereas, a Dwelling Unit as defined in Village Code Sections 18-29 Definitions and Section 18-203 “means any building or part of a building intended for human occupancy and containing one or more connected rooms and a single kitchen, designed for one family for living and sleeping purposes”, and;
Whereas, a Kitchen as defined in Village Code Sections 18-29 “means any room used, intended or designed to be used for cooking or the preparation of food. The presence of a range or oven, or utility connections suitable for servicing a range or oven, shall be considered as establishing a kitchen”, and;
Whereas, in addition to a dwelling unit, the zoning ordinance allows for an “accessory structure” to be built on residentially and commercially zoned lots. An Accessory Structure as defined in Village Code Section 18-29 states “Accessory uses and structures means uses and structures which are clearly incidental and subordinate to principal uses and structures located on the same property” and;

Whereas, despite the above-mentioned regulations limiting density to one dwelling unit per lot, secondary dwelling units, sometimes known as “casitas”, have periodically been constructed in Corrales.

This occurs when an accessory structure is legally constructed on a lot already containing a dwelling unit, and the accessory structure is subsequently converted to another dwelling unit via the addition of an oven or range, and;
Whereas, the “oven/range or utility connections suitable for servicing one” is the only distinguishing feature separating an accessory structure from a dwelling unit, and;

Whereas, the Village of Corrales has no municipal water or sewer with the majority of lots nearly entirely on-site water (well) and septic, low density development is not only an aesthetic issue but a health and safety concern, and;

Now, therefore be it ordained that, the following amendments to the zoning ordinance shall be adopted to provide clarity and better implement the intended regulations of the Village of Corrales Comprehensive Plan and the zoning ordinance.

Section 18-29 Accessory uses and structures definition will be deleted in its entirety and replaced by:
Accessory Building or Structure means a building detached from and incidental and subordinate to the dwelling unit and located on the same lot, such as a detached garage, workshop, or studio. It may have a half bathroom but no shower or tub and may not contain bedrooms or a kitchen. It shall not be used as a dwelling (for human occupancy/ habitation.)

Accessory Use: A use of land or of a building or portion thereof that is incidental and subordinate to the main use of the land and building and located on the same lot with the main use.

Section 18-29 and Section 18-203 Dwelling Unit definition shall be deleted in its entirety and replaced by:
Dwelling Unit: One or more rooms and a single kitchen designed as a unit for human occupancy/ habitation by one family for living and sleeping purposes, but not including recreational vehicles, travel trailers or converted buses, whether on wheels or a permanent foundation. A dwelling unit may be a mobile home, modular home, manufactured home or site-built house. It may also be an independent unit of an apartment, townhouse or other such multiple-unit residential structure, where allowed.

Section 18-29 Kitchen definition shall be revised as follows:
Kitchen: Means any room used, intended or designed to be used for cooking or the preparation of food or containing a range or oven, or utility connections suitable for servicing a range or oven.

Last year and earlier this year, villagers protested construction of a large dwelling along side a new home on West Ella Drive which looked like a clear violation of the one-home-per-lot rule.

After receiving a letter from several villagers in August 2020 expressing concerns about the construction of casitas, the Planning and Zoning Commission began a review of existing ordinances. (See Corrales Comment’s Vol.XXXIX No.12 September 5, 2020 “West Ella ‘Casita’ Scrutinized,” )
Two P&Z subcommittees and the commission as a whole gathered information and research on the secondary dwelling units that exist here.
P&Z Administrator Laurie Stout, who has steered the project, has defined a casita as “a structure used for human habitation that is separate from the primary dwelling unit on a lot,” at least for the purposes of this exploration.

At a January 26, 2021 session, the Village Council voted five-to-one to impose a 180-day moratorium on permits to build secondary dwellings on lots and on applications to operate short-term rental. The council noted that “the size of accessory structures is virtually unregulated, sometimes resulting in what appears to be two homes on one lot,” and that such residences “are being utilized for the commercial purpose of providing short-term rental accommodations.”

It was noted that “the proliferation of loosely-regulated accessory structures being used as short- and long-term rentals has the potential for far-reaching deleterious effects on the village, including negatively impacting neighborhoods with greater numbers of vehicles and persons not previously present and increasing the effective density above that permitted or intended in the A-1 an A-2 zoning districts.”
Stout clarified March 12, 2021 that “the applications for short-term rentals that we are unable to process are those in accessory structures only. Short-term rental permit applications that are all or part of the dwelling unit on a lot may still be accepted and forwarded to the Planning and Zoning Commission for consideration.”

A comprehensive report was produced that includes the following executive summary.
“For this review the commission identified the following essential question:
What requirements, if any, should the Village of Corrales place on the construction and use of casitas?
Two committees of P&Z commissioners were formed in September 2020, one to review the existing ordinances related to casitas as well as relevant ordinances from surrounding communities and the other to gather information regarding the environmental impacts of increased population density, primarily regarding water and wastewater. What follows is an attempt to frame the issue and share the findings of the commission to date.
Our Rural Atmosphere. There has been a long-standing desire of Corraleños to maintain a rural agricultural atmosphere in the village. The most recent Comprehensive Land Use Plan for the Village of Corrales (2009) states that “The Village requirement that single residential units be located on one- or two-acre lots was established just after incorporation in 1971 with the purpose of maintaining Corrales’ rural atmosphere (p. 24).”

The ordinance language governing permissive uses in Zone A-1 Rural Agricultural and A-2 supports this goal:
• Section 18-28 (a) states “Any use not classified as a permissive use or a use by review within a particular zone is hereby prohibited from that zone.”
• Section 18-33(1) Purposes and intents. The purpose of this zone is to maintain a rural and open space character of lands within the Village with low density residential and agricultural development.
• Section 18-33(2) Permissive uses. (a/b/c) One single-family dwelling unit/manufactured house/mobile home unit per lot.
• Section 18-33(2) Permissive uses. (f) Accessory uses and structures. (According to the definition of accessory uses and structures (18-29), this “means uses and structures which are clearly incidental and subordinate to principal uses and structures located on the same property.”)
• Section 18-33(3) Density. The maximum density shall be limited to one dwelling unit per net acre.
(Note that these regulations are for Zone A-1 but they are similar in most regards to the regulations for Zone A-2.)

However, casitas existed in Corrales prior to incorporation of the Village in 1971. Since incorporation, some accessory structures, e.g. studios or stables, have been converted to casitas and casitas have at times been built without the knowledge or permission of the P&Z Department. There may have been uneven enforcement of the ordinances. On top of that, some ordinance language seems to muddy the waters, creating a challenge for our Planning & Zoning Department.

A Lack of Clarity. There is no mention of casitas in our ordinances. In Section 18-29 a dwelling unit is defined as “… any building or part of a building intended for human occupancy and containing one or more connected rooms and a single kitchen, designed for one family for living and sleeping purposes.”

The conjunction, and, is a concern; an accessory structure with connecting rooms and no kitchen is technically and legally not a dwelling unit. The definition of a kitchen states “The presence of a range or oven, or utility connections suitable for servicing a range or oven, shall be considered as establishing a kitchen.” Thus an accessory structure with no plumbing or wiring for a range or oven is, technically and legally, not a dwelling unit and so is allowed as an accessory structure. Thus it appears there is a lack of clarity in the language of the permissive uses.

Is There A Problem with Casitas? There are several reasons why property owners might want to build a casita. They might want a place for elderly parents or other family members to live. They might want a place for a personal assistant or other employee to live; this could be important for elderly or disabled residents. They might want a place for guests to stay. They might want to generate short-term rental income.

But there are downsides that arise when residents build and occupy accessory dwellings. These are primarily related to increased population density. First, there is the matter of the rural agricultural environment that Corraleños desire. More buildings mean less open land, plain and simple. There is also the matter of traffic —greater density means more people driving on roads, many of which are unpaved, contributing to wear and tear, increased maintenance and increased dust and noise. And then there is the matter of our water.

“Drinking your neighbors’ sewage.” While Corrales is blessed with a robust aquifer, it does not have a municipal water system or wastewater treatment facility. We all have domestic wells and nearly all of us have septic systems. In places the water table is very shallow, necessitating the use of mounded septic systems and advanced treatment systems. This is a matter of serious concern. As noted by Dennis McQuillan, Liquid Waste Program Manager of the New Mexico Environmental Department (NMED) in the report, Groundwater Contamination by Septic Tank Effluents (2006), people living in areas with domestic wells and a high density of septic systems risk “Drinking your neighbors’ sewage.”

This is not really news for Corrales. In 2005 McQuillan prepared a report, Groundwater Quality in Corrales. He noted —and this was 15 years ago— that “Corrales was selected for a hydrogeologic investigation because of the large number of small lots (less than 3/4 acre) developed with on-site wells and septic systems.” The first line of the abstract reads, “Septic tank effluents have adversely impacted ground-water quality in the Village of Corrales.”
He notes that “… there have been many historic reports by well users in the area of water quality problems such as high iron and the presence of hydrogen sulfide gas.” While some of these pollutants occur naturally in the inner Rio Grande Valley, much of it can be attributed to bacteria that are feeding on organic waste and using oxygen from naturally-occurring iron and sulfur oxides due to low free oxygen levels in the soil. This results in rusty toilet bowls and a rotten egg smell, not to mention possible negative effects on our health. Nitrate levels are also high, particularly in the areas west of the main canal. As our population grows and the population density increases, the pollutant load in our groundwater can only increase.
Corrales is currently the only local municipality that relies primarily on septic systems for liquid waste disposal.

All of the others (Albuquerque, Los Ranchos, Rio Rancho, Bernalillo) have wastewater treatment systems. The Village has taken some measures to address the wastewater issue by installing a liquids-only wastewater effluent pipeline that accepts effluent from individual septic tanks located along Corrales Road and conveys it to a treatment plant in Albuquerque. There are plans to expand this pipeline to other areas, but this is a limited solution.
What Are the Options? Any potential regulations regarding casitas must hinge on the protection of groundwater quality. Given the importance of limiting groundwater contamination, the P&Z has identified three options for Corraleños to consider regarding casitas.

• We could ban future construction of casitas.

• We could allow the future construction of casitas subject to limitations imposed by state or local environmental law. By state statute §20.7.3.301(E) NMAC a one-acre lot, for example, is allowed a septic system design flow rate of not more than 500 gallons per day. This correlates with a design flow rate for a five-bedroom dwelling or a two-bedroom primary dwelling with a one-bedroom casita (§20.7.3.201(P)(1) NMAC). Larger lots are allowed more bedrooms in accordance with the statutes.

• We could allow the future construction of casitas only if they are connected to an off-site wastewater treatment system.
It is important to note that only the third option addresses the ongoing contamination of our groundwater. The other two have the potential to reduce but not eliminate future increases in groundwater pollution.
The commission sought input from Corraleños via a survey and public meetingswhich was to be used to develop recommendations to the Village Council for possible changes to the ordinances to best reflect community’s needs and desires.
We encourage members of the community to review the supporting documents compiled by the commission. These can be found on the Village website, corrales-nm.org, then ‘I’m Looking For,’ then Key Documents Directory, then Casitas Executive Summary and Supporting Documents. It also is available on the website home page, Latest News tab, same link title.
We look forward to your input and a robust discussion.”

Among the questions in a P&Z commission survey earlier this year were those seeking attitudes about casitas are around the following topics:
• Should the Village limit the size of new casitas to a certain percentage of the size of the primary residence?
• Should the Village limit te total number of bedrooms in all dwellings on a lot, including casitas?
• Should the Village allow new casitas only on lots that are one acre or larger?

Respondents were asked to indicate the degree to which they agree or disagree. In another section of the survey, respondents were asked how concerned they are about topics such as groundwater quality, population density and noise that might be associated with casitas.
In Mayor Jo Anne Roake’s weekly message May 28, she stated the intention of revisions to Chapter 18 of the Village’s Code of Ordinances is “to make our land use regulations more uniform, easier to follow and to enforce.

“The completed product is due at the end of 2021. This regulatory clean-up is not intended to change policy. Review and possible changes to Village land use policy is best achieved with a new Comprehensive Plan, after extensive public participation and study.
“With council approval, work on a new Comprehensive Plan could start in 2022,” the mayor wrote.